ISSN 1977-0677

Official Journal

of the European Union

L 127

European flag  

English edition

Legislation

Volume 57
29 April 2014


Contents

 

I   Legislative acts

page

 

 

DIRECTIVES

 

*

Directive 2014/40/EU of the European Parliament and of the Council of 3 April 2014 on the approximation of the laws, regulations and administrative provisions of the Member States concerning the manufacture, presentation and sale of tobacco and related products and repealing Directive 2001/37/EC ( 1 )

1

 

*

Directive 2014/42/EU of the European Parliament and of the Council of 3 April 2014 on the freezing and confiscation of instrumentalities and proceeds of crime in the European Union

39

 

*

Directive 2014/45/EU of the European Parliament and of the Council of 3 April 2014 on periodic roadworthiness tests for motor vehicles and their trailers and repealing Directive 2009/40/EC ( 1 )

51

 

*

Directive 2014/46/EU of the European Parliament and of the Council of 3 April 2014 amending Council Directive 1999/37/EC on the registration documents for vehicles

129

 

*

Directive 2014/47/EU of the European Parliament and of the Council of 3 April 2014 on the technical roadside inspection of the roadworthiness of commercial vehicles circulating in the Union and repealing Directive 2000/30/EC ( 1 )

134

 


 

(1)   Text with EEA relevance

EN

Acts whose titles are printed in light type are those relating to day-to-day management of agricultural matters, and are generally valid for a limited period.

The titles of all other Acts are printed in bold type and preceded by an asterisk.


I Legislative acts

DIRECTIVES

29.4.2014   

EN

Official Journal of the European Union

L 127/1


DIRECTIVE 2014/40/EU OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

of 3 April 2014

on the approximation of the laws, regulations and administrative provisions of the Member States concerning the manufacture, presentation and sale of tobacco and related products and repealing Directive 2001/37/EC

(Text with EEA relevance)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Articles 53(1), 62 and 114 thereof,

Having regard to the proposal from the European Commission,

After transmission of the draft legislative act to the national parliaments,

Having regard to the opinion of the European Economic and Social Committee (1),

Having regard to the opinion of the Committee of the Regions (2),

Acting in accordance with the ordinary legislative procedure (3),

Whereas:

(1)

Directive 2001/37/EC of the European Parliament and of the Council (4) lays down rules at Union level concerning tobacco products. In order to reflect scientific, market and international developments, substantial changes to that Directive would be needed and it should therefore be repealed and replaced by a new Directive.

(2)

In its reports of 2005 and 2007 on the application of Directive 2001/37/EC the Commission identified areas in which further action was considered useful for the smooth functioning of the internal market. In 2008 and 2010 the Scientific Committee on Emerging and Newly Identified Health Risks (SCENIHR) provided scientific advice to the Commission on smokeless tobacco products and tobacco additives. In 2010 a broad stakeholder consultation took place, which was followed by targeted stakeholder consultations and accompanied by studies by external consultants. Member States were consulted throughout the process. The European Parliament and the Council repeatedly called on the Commission to review and update Directive 2001/37/EC.

(3)

In certain areas covered by Directive 2001/37/EC, Member States are legally or in practice prevented from effectively adapting their legislation to new developments. This is in particular relevant for the labelling rules, where Member States have not been permitted to increase the size of the health warnings, change their location on an individual packet (‘unit packet’) or replace misleading warnings on the tar, nicotine and carbon monoxide (TNCO) emission levels.

(4)

In other areas there are still substantial differences between the Member States' laws, regulations and administrative provisions on the manufacture, presentation and sale of tobacco and related products which present obstacles to the smooth functioning of the internal market. In the light of scientific, market and international developments these discrepancies are expected to increase. This also applies to electronic cigarettes and refill containers for electronic cigarettes (‘refill containers’), herbal products for smoking, ingredients and emissions from tobacco products, certain aspects of labelling and packaging and to cross-border distance sales of tobacco products.

(5)

Those obstacles should be eliminated and, to this end, the rules on the manufacture, presentation and sale of tobacco and related products should be further approximated.

(6)

The size of the internal market in tobacco and related products, the increasing tendency of manufacturers of tobacco products to concentrate production for the entire Union in only a small number of production plants within the Union and the resulting significant cross-border trade of tobacco and related products calls for stronger legislative action at Union rather than national level to achieve the smooth functioning of the internal market.

(7)

Legislative action at Union level is also necessary in order to implement the WHO Framework Convention on Tobacco Control (‘FCTC’) of May 2003, the provisions of which are binding on the Union and its Member States. The FCTC provisions on the regulation of the contents of tobacco products, the regulation of tobacco product disclosures, the packaging and labelling of tobacco products, advertising and illicit trade in tobacco products are particularly relevant. The Parties to the FCTC, including the Union and its Member States, adopted a set of guidelines for the implementation of FCTC provisions by consensus during various Conferences.

(8)

In accordance with Article 114(3) of the Treaty of the Functioning of the European Union (TFEU), a high level of health protection should be taken as a base for legislative proposals and, in particular, any new developments based on scientific facts should be taken into account. Tobacco products are not ordinary commodities and in view of the particularly harmful effects of tobacco on human health, health protection should be given high importance, in particular, to reduce smoking prevalence among young people.

(9)

It is necessary to establish a number of new definitions in order to ensure that this Directive is uniformly applied by Member States. Where different obligations imposed by this Directive apply to different product categories and the relevant product falls into more than one of those categories (e.g. pipe, roll your-own tobacco), the stricter obligations should apply.

(10)

Directive 2001/37/EC established maximum limits for tar, nicotine and carbon monoxide yields of cigarettes that should also be applicable to cigarettes which are exported from the Union. Those maximum limits and that approach remain valid.

(11)

For measuring the tar, nicotine and carbon monoxide yields of cigarettes (hereinafter referred to as ‘emission levels’), reference should be made to the relevant, internationally recognised ISO standards. The verification process should be protected from tobacco industry influence by using independent laboratories, including State laboratories. Member States should be able to use laboratories situated in other Member States of the Union. For other emissions from tobacco products, there are no internationally agreed standards or tests for quantifying maximum levels. The ongoing efforts at international level to develop such standards or tests should be encouraged.

(12)

As regards establishing maximum emission levels, it could be necessary and appropriate at a later date to reduce the emission levels for tar, nicotine and carbon monoxide or to establish maximum levels for other emissions from tobacco products, taking into consideration their toxicity or addictiveness.

(13)

In order to carry out their regulatory tasks, Member States and the Commission require comprehensive information on the ingredients and emissions from tobacco products to assess the attractiveness, addictiveness and toxicity of tobacco products and the health risks associated with the consumption of such products. To this end, the existing reporting obligations for ingredients and emissions should be strengthened. Additional enhanced reporting obligations should be provided for in respect of additives included in a priority list in order to assess, inter alia their toxicity, addictiveness and carcinogenic, mutagenic or reprotoxic properties (‘CMR properties’), including in combusted form. The burden of such enhanced reporting obligations for SMEs should be limited to the extent possible. Such reporting obligations are consistent with the obligation placed on the Union to ensure a high level of protection for human health.

(14)

The use of differing reporting formats, as is currently the case, makes it difficult for manufacturers and importers to fulfil their reporting obligations and burdensome for the Member States and the Commission to compare, analyse and draw conclusions from the information received. Therefore, there should be a common mandatory format for the reporting of ingredients and emissions. The greatest possible transparency of product information should be ensured for the general public, whilst ensuring that appropriate account is taken of the trade secrets of the manufacturers of tobacco products. Existing systems for the reporting of ingredients should be taken into account.

(15)

The lack of a harmonised approach to regulating the ingredients of tobacco products affects the smooth functioning of the internal market and has a negative impact on the free movement of goods across the Union. Some Member States have adopted legislation or entered into binding agreements with the industry allowing or prohibiting certain ingredients. As a result, some ingredients are regulated in certain Member States, but not in others. Member States also take differing approaches as regards additives in the filters of cigarettes as well as additives colouring the tobacco smoke. Without harmonisation, the obstacles to the smooth functioning of the internal market are expected to increase in the coming years, taking into account the implementation of the FCTC and the relevant FCTC guidelines throughout the Union and in the light of experience gained in other jurisdictions outside the Union. The FCTC guidelines in relation to the regulation of the contents of tobacco products and regulation of tobacco product disclosures call in particular for the removal of ingredients that increase palatability, create the impression that tobacco products have health benefits, are associated with energy and vitality or have colouring properties.

(16)

The likelihood of diverging regulation is further increased by concerns over tobacco products having a characterising flavour other than one of tobacco, which could facilitate initiation of tobacco consumption or affect consumption patterns. Measures introducing unjustified differences of treatment between different types of flavoured cigarettes should be avoided. However, products with characterising flavour with a higher sales volume should be phased out over an extended time period to allow consumers adequate time to switch to other products.

(17)

The prohibition of tobacco products with characterising flavours does not preclude the use of individual additives outright, but it does oblige manufacturers to reduce the additive or the combination of additives to such an extent that the additives no longer result in a characterising flavour. The use of additives necessary for the manufacture of tobacco products, for example sugar to replace sugar that is lost during the curing process, should be allowed, as long as they do not result in a characterising flavour or increase the addictiveness, toxicity or CMR properties of the product. An independent European advisory panel should assist in such decision making. The application of this Directive should not lead to discrimination between different tobacco varieties, nor should it prevent product differentiation.

(18)

Certain additives are used to create the impression that tobacco products have health benefits, present reduced health risks or increase mental alertness and physical performance. These additives, as well as additives that have CMR properties in unburnt form, should be prohibited in order to ensure uniform rules throughout the Union and a high level of protection of human health. Additives that increase addictiveness and toxicity should also be prohibited.

(19)

Considering this Directive's focus on young people, tobacco products other than cigarettes and roll-your-own tobacco, should be granted an exemption from certain requirements relating to ingredients as long as there is no substantial change of circumstances in terms of sales volumes or consumption patterns of young people.

(20)

Given the general prohibition of the sale of tobacco for oral use in the Union, the responsibility for regulating the ingredients of tobacco for oral use, which requires in-depth knowledge of the specific characteristics of this product and of its patterns of consumption, should, in accordance with the principle of subsidiarity, remain with Sweden, where the sale of this product is permitted pursuant to Article 151 of the Act of Accession of Austria, Finland and Sweden.

(21)

In line with the purposes of this Directive, namely to facilitate the smooth functioning of the internal market for tobacco and related products, taking as a base a high level of health protection, especially for young people, and in line with Council Recommendation 2003/54/EC (5), Member States should be encouraged to prevent sales of such products to children and adolescents, by adopting appropriate measures that lay down and enforce age limits.

(22)

Disparities still exist between national provisions regarding the labelling of tobacco products, in particular with regard to the use of combined health warnings consisting of a picture and a text, information on cessation services and promotional elements in and on unit packets.

(23)

Such disparities are liable to constitute a barrier to trade and to impede the smooth functioning of the internal market in tobacco products, and should, therefore, be eliminated. Also, it is possible that consumers in some Member States are better informed about the health risks of tobacco products than consumers in other Member States. Without further action at Union level, the existing disparities are likely to increase in the coming years.

(24)

Adaptation of the provisions on labelling is also necessary to align the rules that apply at Union level to international developments. For example, the FCTC guidelines on the packaging and labelling of tobacco products call for large picture warnings on both principal display areas, mandatory cessation information and strict rules on misleading information. The provisions on misleading information will complement the general ban on misleading business to consumer commercial practices laid down in Directive 2005/29/EC of the European Parliament and of the Council (6).

Member States that use tax stamps or national identification marks for fiscal purposes on the packaging of tobacco products may, in some cases, have to provide for these stamps and marks to be repositioned in order to allow for the combined health warnings to be at the top of the principal display areas, in line with this Directive and the FCTC guidelines. Transitional arrangements should be put in place to allow Member States to maintain tax stamps or national identification marks used for fiscal purposes at the top of unit packets for a certain period after transposition of this Directive.

(25)

The labelling provisions should also be adapted to new scientific evidence. For example, the indication of the emission levels for tar, nicotine and carbon monoxide on unit packets of cigarettes has proven to be misleading as it leads consumers to believe that certain cigarettes are less harmful than others. Evidence also suggests that large combined health warnings comprised of a text warning and a corresponding colour photograph are more effective than warnings consisting only of text. As a consequence, combined health warnings should become mandatory throughout the Union and cover significant and visible parts of the surface of unit packets. Minimum dimensions should be set for all health warnings to ensure their visibility and effectiveness.

(26)

For tobacco products for smoking, other than cigarettes and roll-your-own tobacco products, which are mainly consumed by older consumers and small groups of the population, it should be possible to continue to grant an exemption from certain labelling requirements as long as there is no substantial change of circumstances in terms of sales volumes or consumption patterns of young people. The labelling of these other tobacco products should follow rules that are specific to them. The visibility of health warnings on smokeless tobacco products should be ensured. Health warnings should, therefore, be placed on the two main surfaces of the packaging of smokeless tobacco products. As regards waterpipe tobacco, which is often perceived as less harmful than traditional tobacco products for smoking, the full labelling regime should apply in order to avoid consumers being misled.

(27)

Tobacco products or their packaging could mislead consumers, in particular young people, where they suggest that these products are less harmful. This is, for example, the case if certain words or features are used, such as the words ‘low-tar’, ‘light’, ‘ultra-light’, ‘mild’, ‘natural’, ‘organic’, ‘without additives’, ‘without flavours’ or ‘slim’, or certain names, pictures, and figurative or other signs. Other misleading elements might include, but are not limited to, inserts or other additional material such as adhesive labels, stickers, onserts, scratch-offs and sleeves or relate to the shape of the tobacco product itself. Certain packaging and tobacco products could also mislead consumers by suggesting benefits in terms of weight loss, sex appeal, social status, social life or qualities such as femininity, masculinity or elegance. Likewise, the size and appearance of individual cigarettes could mislead consumers by creating the impression that they are less harmful. Neither the unit packets of tobacco products nor their outside packaging should include printed vouchers, discount offers, reference to free distribution, two-for-one or other similar offers that could suggest economic advantages to consumers thereby inciting them to buy those tobacco products.

(28)

In order to ensure the integrity and the visibility of health warnings and maximise their efficacy, provisions should be made regarding the dimensions of the health warnings as well as regarding certain aspects of the appearance of the unit packets of tobacco products, including the shape and opening mechanism. When prescribing a cuboid shape for a unit packet, rounded or bevelled edges should be considered acceptable, provided the health warning covers a surface area that is equivalent to that on a unit packet without such edges. Member States apply different rules on the minimum number of cigarettes per unit packet. Those rules should be aligned in order to ensure free circulation of the products concerned.

(29)

Considerable volumes of illicit products, which do not fulfil the requirements laid down in Directive 2001/37/EC, are placed on the market and there are indications that these volumes might increase. Such illicit products undermine the free circulation of compliant products and the protection provided for by tobacco control legislation. In addition, the FCTC requires the Union to combat illicit tobacco products, including those illegally imported into the Union, as part of a comprehensive Union policy on tobacco control. Provision should, therefore, be made for unit packets of tobacco products to be marked with a unique identifier and security features and for their movements to be recorded so that such products can be tracked and traced throughout the Union and their compliance with this Directive can be monitored and better enforced. In addition, provision should be made for the introduction of security features that will facilitate the verification of whether or not tobacco products are authentic.

(30)

An interoperable tracking and tracing system and security features should be developed at Union level. For an initial period only cigarettes and roll-your-own tobacco should be subjected to the tracking and tracing system and the security features. This would allow manufacturers of other tobacco products to benefit from the experience gained prior to the tracking and tracing system and security features becoming applicable to those other products.

(31)

In order to ensure independence and transparency of the tracking and tracing system, manufacturers of tobacco products should conclude data storage contracts with independent third parties. The Commission should approve the suitability of those independent third parties and an independent external auditor should monitor their activities. The data related to the tracking and tracing system should be kept separate from other company related data and should be under the control of, and accessible at all times by, the competent authorities from Member States and the Commission.

(32)

Council Directive 89/622/EEC (7) prohibited the sale in the Member States of certain types of tobacco for oral use. Directive 2001/37/EC reaffirmed that prohibition. Article 151 of the Act of Accession of Austria, Finland and Sweden grants Sweden a derogation from the prohibition. The prohibition of the sale of tobacco for oral use should be maintained in order to prevent the introduction in the Union (apart from Sweden) of a product that is addictive and has adverse health effects. For other smokeless tobacco products that are not produced for the mass market, strict provisions on labelling and certain provisions relating to their ingredients are considered sufficient to contain their expansion in the market beyond their traditional use.

(33)

Cross-border distance sales of tobacco products could facilitate access to tobacco products that do not comply with this Directive. There is also an increased risk that young people would get access to tobacco products. Consequently, there is a risk that tobacco control legislation would be undermined. Member States should, therefore, be allowed to prohibit cross-border distance sales. Where cross-border distance sales are not prohibited, common rules on the registration of retail outlets engaging in such sales are appropriate to ensure the effectiveness of this Directive. Member States should, in accordance with Article 4(3) of the Treaty on European Union (TEU) cooperate with each other in order to facilitate the implementation of this Directive, in particular with respect to measures taken as regards cross-border distance sales of tobacco products.

(34)

All tobacco products have the potential to cause mortality, morbidity and disability. Accordingly, their manufacture, distribution and consumption should be regulated. It is, therefore, important to monitor developments as regards novel tobacco products. Manufacturers and importers should be obliged to submit a notification of novel tobacco products, without prejudice to the power of the Member States to ban or to authorise such novel products.

(35)

In order to ensure a level playing field, novel tobacco products, that are tobacco products as defined in this Directive, should comply with the requirements of this Directive.

(36)

Electronic cigarettes and refill containers should be regulated by this Directive, unless they are - due to their presentation or function - subject to Directive 2001/83/EC of the European Parliament and of the Council (8) or to Council Directive 93/42/EEC (9). Diverging legislation and practices as regards these products, including on safety requirements, exist between Member States, hence, action at Union level is required to improve the smooth functioning of the internal market. A high level of public health protection should be taken into account when regulating these products. In order to enable Member States to carry out their surveillance and control tasks, manufacturers and importers of electronic cigarettes and refill containers should be required to submit a notification of the relevant products before they are placed on the market.

(37)

Member States should ensure that electronic cigarettes and refill containers comply with the requirements of this Directive. Where the manufacturer of the relevant product is not established in the Union, the importer of that product should bear the responsibilities relating to the compliance of those products with this Directive.

(38)

Nicotine-containing liquid should only be allowed to be placed on the market under this Directive, where the nicotine concentration does not exceed 20 mg/ml. This concentration allows for a delivery of nicotine that is comparable to the permitted dose of nicotine derived from a standard cigarette during the time needed to smoke such a cigarette. In order to limit the risks associated with nicotine, maximum sizes for refill containers, tanks and cartridges should be set.

(39)

Only electronic cigarettes that deliver nicotine doses at consistent levels should be allowed to be placed on the market under this Directive. Delivery of nicotine doses at consistent levels under normal conditions of use is necessary for health protection, safety and quality purposes, including to avoid the risk of accidental consumption of high doses.

(40)

Electronic cigarettes and refill containers could create a health risk when in the hands of children. Therefore, it is necessary to ensure that such products are child- and tamperproof, including by means of child-proof labelling, fastenings and opening mechanisms.

(41)

In view of the fact that nicotine is a toxic substance and considering the potential health and safety risks, including to persons for whom the product is not intended, nicotine-containing liquid should only be placed on the market in electronic cigarettes or in refill containers that meet certain safety and quality requirements. It is important to ensure that electronic cigarettes do not break or leak during use and refill.

(42)

The labelling and packaging of these products should display sufficient and appropriate information on their safe use, in order to protect human health and safety, should carry appropriate health warnings and should not include any misleading elements or features.

(43)

Disparities between national laws and practices on advertising and sponsorship concerning electronic cigarettes present an obstacle to the free movement of goods and the freedom to provide services and create an appreciable risk of distortion of competition. Without further action at Union level, those disparities are likely to increase over the coming years, also taking into account the growing market for electronic cigarettes and refill containers. Therefore, it is necessary to approximate the national provisions on advertising and sponsorship of those products having cross-border effects, taking as a base a high level of protection of human health. Electronic cigarettes can develop into a gateway to nicotine addiction and ultimately traditional tobacco consumption, as they mimic and normalize the action of smoking. For this reason, it is appropriate to adopt a restrictive approach to advertising electronic cigarettes and refill containers.

(44)

In order to perform their regulatory tasks, the Commission and Member States need comprehensive information on market developments as regards electronic cigarettes and refill containers. To this end manufacturers and importers of these products should be subject to reporting obligations on sales volumes, preference of various consumer groups and mode of sales. It should be ensured that this information is made available to the general public, taking the need to protect trade secrets duly into account.

(45)

In order to ensure appropriate market surveillance by Member States, it is necessary that manufacturers, importers and distributors operate an appropriate system for monitoring and recording suspected adverse effects and inform the competent authorities about such effects so that appropriate action can be taken. It is warranted to provide for a safeguard clause that would allow Member States to take action to address serious risks to public health.

(46)

In the context of an emerging market for electronic cigarettes, it is possible that, although complying with this Directive, specific electronic cigarettes or refill containers, or a type of electronic cigarette or refill container, placed on the market could pose an unforeseen risk to human health. It is therefore advisable to provide for a procedure to address this risk, which should include the possibility for a Member State to adopt provisional appropriate measures. Such provisional appropriate measures could involve the prohibition of the placing on the market of specific electronic cigarettes or refill containers, or of a type of electronic cigarette or refill container. In this context, the Commission should be empowered to adopt delegated acts in order to prohibit the placing on the market of specific electronic cigarettes or refill containers, or of a type of electronic cigarette or refill container. The Commission should be empowered to do so, when at least three Member States have prohibited the products concerned on duly justified grounds and it is necessary to extend this prohibition to all Member States in order to ensure the smooth functioning of the internal market for products complying with this Directive but not presenting the same health risks. The Commission should report on the potential risks associated with refillable electronic cigarettes by 20 May 2016.

(47)

This Directive does not harmonise all aspects of electronic cigarettes or refill containers. For example, the responsibility for adopting rules on flavours remains with the Member States. It could be useful for Member States to consider allowing the placing on the market of flavoured products. In doing so, they should be mindful of the potential attractiveness of such products for young people and non smokers. Any prohibition of such flavoured products would need to be justified and notification thereof submitted in accordance with Directive 98/34/EC of the European Parliament and of the Council (10).

(48)

Moreover, this Directive does not harmonise the rules on smoke-free environments, or on domestic sales arrangements or domestic advertising, or brand stretching, nor does it introduce an age limit for electronic cigarettes or refill containers. In any case, the presentation and advertising of those products should not lead to the promotion of tobacco consumption or give rise to confusion with tobacco products. Member States are free to regulate such matters within the remit of their own jurisdiction and are encouraged to do so.

(49)

The regulation of herbal products for smoking differs between Member States and these products are often perceived as harmless or less harmful despite the health risk caused by their combustion. In many cases consumers do not know the content of these products. In order to ensure the smooth functioning of the internal market and improve information to consumers, common labelling rules and ingredients reporting for these products should be introduced at Union level.

(50)

In order to ensure uniform conditions for the implementation of this Directive implementing powers should be conferred on the Commission concerning the laying down and updating of a priority list of additives for enhanced reporting, the laying down and updating of the format for the reporting of ingredients and for the dissemination of that information, determining whether a tobacco product has a characterising flavour or has increased levels of toxicity, addictiveness or CMR properties, the methodology for determining whether a tobacco product has a characterising flavour, the procedures for the establishment and operation of an independent advisory panel for determining tobacco products with characterising flavours, the precise position of health warnings on pouches of roll-your-own tobacco, the technical specifications for the layout, design, and shape of combined health warnings, the technical standards for the establishment and operation of the tracking and tracing system, for ensuring the compatibility of the systems for the unique identifiers and for the security features, as well as establishing a common format for notification of electronic cigarettes and refill containers and the technical standards for the refill mechanisms for such products. Those implementing powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council (11).

(51)

In order to ensure that this Directive is fully operational and to adapt it to technical, scientific and international developments in tobacco manufacture, consumption and regulation, the power to adopt acts in accordance with Article 290 TFEU should be delegated to the Commission in respect of adopting and adapting maximum emission levels and methods for measuring those emissions, setting maximum levels for additives that result in a characterising flavour or that increase toxicity or addictiveness, withdrawing certain exemptions granted to tobacco products other than cigarettes and roll-your-own tobacco, adapting the health warnings, establishing and adapting the picture library, defining the key elements of the data storage contracts to be concluded for the purposes of the tracking and tracing system, and extending measures adopted by Member States to the entire Union concerning specific electronic cigarettes or refill containers or a type of electronic cigarette or refill container. It is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level. The Commission, when preparing and drawing up delegated acts, should ensure a simultaneous, timely and appropriate transmission of relevant documents to the European Parliament and to the Council.

(52)

The Commission should monitor the developments as regards the implementation and impact of this Directive and submit a report by 21 May 2021, and when necessary thereafter, in order to assess whether amendments to this Directive are necessary. The report should include information on the surfaces of unit packets of tobacco products that are not governed by this Directive, market developments concerning novel tobacco products, market developments that amount to a substantial change of circumstances, market developments concerning, and the consumer perception of, slim cigarettes, of waterpipe tobacco and of electronic cigarettes and refill containers.

The Commission should prepare a report regarding the feasibility, benefits and impact of a European system for the regulation of ingredients in tobacco products, including the feasibility and benefits of establishing a list of ingredients at Union level that can be used, or present in or added to tobacco products (so-called ‘positive list’). In preparing that report, the Commission should evaluate, inter alia, the available scientific evidence on the toxic and addictive effects of ingredients.

(53)

Tobacco and related products which comply with this Directive should benefit from the free movement of goods. However, in light of the different degrees of harmonisation achieved by this Directive, the Member States should, under certain conditions, retain the power to impose further requirements in certain respects in order to protect public health. This is the case in relation to the presentation and the packaging, including colours, of tobacco products other than health warnings, for which this Directive provides a first set of basic common rules. Accordingly, Member States could, for example, introduce provisions providing for further standardisation of the packaging of tobacco products, provided that those provisions are compatible with the TFEU, with WTO obligations and do not affect the full application of this Directive.

(54)

Moreover, in order to take into account possible future market developments, Member States should also be allowed to prohibit a certain category of tobacco or related products, on grounds relating to the specific situation in the Member State concerned and provided the provisions are justified by the need to protect public health, taking into account the high level of protection achieved through this Directive. Member States should notify such stricter national provisions to the Commission.

(55)

A Member State should remain free to maintain or introduce national laws applying to all products placed on its national market for aspects not regulated by this Directive, provided they are compatible with the TFEU and do not jeopardise the full application of this Directive. Accordingly and under those conditions, a Member State could, inter alia, regulate or ban paraphernalia used for tobacco products (including waterpipes) and for herbal products for smoking as well as regulate or ban products resembling in appearance a type of tobacco or related product. Prior notification is required for national technical regulations pursuant to Directive 98/34/EC.

(56)

Member States should ensure that personal data are only processed in accordance with the rules and safeguards laid down in Directive 95/46/EC of the European Parliament and of the Council (12).

(57)

This Directive is without prejudice to Union laws governing the use and labelling of genetically modified organisms.

(58)

In accordance with the Joint Political Declaration of 28 September 2011 of Member States and the Commission on explanatory documents (13), Member States have undertaken to accompany, in justified cases, the notification of their transposition measures with one or more documents explaining the relationship between the components of a directive and the corresponding parts of national transposition instruments. With regard to this Directive, the legislator considers the transmission of such documents to be justified.

(59)

The obligation to respect the fundamental rights and legal principles enshrined in the Charter of Fundamental Rights of the European Union is not changed by this Directive. Several fundamental rights are affected by this Directive. It is therefore necessary to ensure that the obligations imposed on manufacturers, importers and distributors of tobacco and related products not only guarantee a high level of health and consumer protection, but also protect all other fundamental rights and are proportionate with respect to the smooth functioning of the internal market. The application of this Directive should respect Union law and relevant international obligations.

(60)

Since the objectives of this Directive, namely to approximate the laws, regulations and administrative provisions of the Member States concerning the manufacture, presentation and sale of tobacco and related products, cannot be sufficiently achieved by the Member States, but can rather, by reason of their scale and effects, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 TEU. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve those objectives,

HAVE ADOPTED THIS DIRECTIVE:

TITLE I

COMMON PROVISIONS

Article 1

Subject matter

The objective of this Directive is to approximate the laws, regulations and administrative provisions of the Member States concerning:

(a)

the ingredients and emissions of tobacco products and related reporting obligations, including the maximum emission levels for tar, nicotine and carbon monoxide for cigarettes;

(b)

certain aspects of the labelling and packaging of tobacco products including the health warnings to appear on unit packets of tobacco products and any outside packaging as well as traceability and security features that are applied to tobacco products to ensure their compliance with this Directive;

(c)

the prohibition on the placing on the market of tobacco for oral use;

(d)

cross-border distance sales of tobacco products;

(e)

the obligation to submit a notification of novel tobacco products;

(f)

the placing on the market and the labelling of certain products, which are related to tobacco products, namely electronic cigarettes and refill containers, and herbal products for smoking;

in order to facilitate the smooth functioning of the internal market for tobacco and related products, taking as a base a high level of protection of human health, especially for young people, and to meet the obligations of the Union under the WHO Framework Convention for Tobacco Control (‘FCTC’).

Article 2

Definitions

For the purposes of this Directive, the following definitions shall apply:

(1)

‘tobacco’ means leaves and other natural processed or unprocessed parts of tobacco plants, including expanded and reconstituted tobacco;

(2)

‘pipe tobacco’ means tobacco that can be consumed via a combustion process and exclusively intended for use in a pipe;

(3)

‘roll-your-own tobacco’ means tobacco which can be used for making cigarettes by consumers or retail outlets;

(4)

‘tobacco products’ means products that can be consumed and consist, even partly, of tobacco, whether genetically modified or not;

(5)

‘smokeless tobacco product’ means a tobacco product not involving a combustion process, including chewing tobacco, nasal tobacco and tobacco for oral use;

(6)

‘chewing tobacco’ means a smokeless tobacco product exclusively intended for the purpose of chewing;

(7)

‘nasal tobacco’ means a smokeless tobacco product that can be consumed via the nose;

(8)

‘tobacco for oral use’ means all tobacco products for oral use, except those intended to be inhaled or chewed, made wholly or partly of tobacco, in powder or in particulate form or in any combination of those forms, particularly those presented in sachet portions or porous sachets;

(9)

‘tobacco products for smoking’ means tobacco products other than a smokeless tobacco product;

(10)

‘cigarette’ means a roll of tobacco that can be consumed via a combustion process and is further defined in Article 3(1) of Council Directive 2011/64/EU (14);

(11)

‘cigar’ means a roll of tobacco that can be consumed via a combustion process and is further defined in Article 4(1) of Directive 2011/64/EU;

(12)

‘cigarillo’ means a small type of cigar and is further defined in Article 8(1) of Council Directive 2007/74/EC (15);

(13)

‘waterpipe tobacco’ means a tobacco product that can be consumed via a waterpipe. For the purpose of this Directive, waterpipe tobacco is deemed to be a tobacco product for smoking. If a product can be used both via waterpipes and as roll-your-own tobacco, it shall be deemed to be roll-your-own tobacco;

(14)

‘novel tobacco product’ means a tobacco product which:

(a)

does not fall into any of the following categories: cigarettes, roll-your-own tobacco, pipe tobacco, waterpipe tobacco, cigars, cigarillos, chewing tobacco, nasal tobacco or tobacco for oral use; and

(b)

is placed on the market after 19 May 2014;

(15)

‘herbal product for smoking’ means a product based on plants, herbs or fruits which contains no tobacco and that can be consumed via a combustion process;

(16)

‘electronic cigarette’ means a product that can be used for consumption of nicotine-containing vapour via a mouth piece, or any component of that product, including a cartridge, a tank and the device without cartridge or tank. Electronic cigarettes can be disposable or refillable by means of a refill container and a tank, or rechargeable with single use cartridges;

(17)

‘refill container’ means a receptacle that contains a nicotine-containing liquid, which can be used to refill an electronic cigarette;

(18)

‘ingredient’ means tobacco, an additive, as well as any substance or element present in a finished tobacco product or related products, including paper, filter, ink, capsules and adhesives;

(19)

‘nicotine’ means nicotinic alkaloids;

(20)

‘tar’ means the raw anhydrous nicotine-free condensate of smoke;

(21)

‘emissions’ means substances that are released when a tobacco or related product is consumed as intended, such as substances found in smoke, or substances released during the process of using smokeless tobacco products;

(22)

‘maximum level’ or ‘maximum emission level’ means the maximum content or emission, including zero, of a substance in a tobacco product measured in milligrams;

(23)

‘additive’ means a substance, other than tobacco, that is added to a tobacco product, a unit packet or to any outside packaging;

(24)

‘flavouring’ means an additive that imparts smell and/or taste;

(25)

‘characterising flavour’ means a clearly noticeable smell or taste other than one of tobacco, resulting from an additive or a combination of additives, including, but not limited to, fruit, spice, herbs, alcohol, candy, menthol or vanilla, which is noticeable before or during the consumption of the tobacco product;

(26)

‘addictiveness’ means the pharmacological potential of a substance to cause addiction, a state which affects an individual's ability to control his or her behaviour, typically by instilling a reward or a relief from withdrawal symptoms, or both;

(27)

‘toxicity’ means the degree to which a substance can cause harmful effects in the human organism, including effects occurring over time, usually through repeated or continuous consumption or exposure;

(28)

‘substantial change of circumstances’ means an increase of the sales volumes by product category by at least 10 % in at least five Member States based on sales data transmitted in accordance with Article 5(6) or an increase of the level of prevalence of use in the under 25 years of age consumer group by at least five percentage points in at least five Member States for the respective product category based on the Special Eurobarometer 385 report of May 2012 or equivalent prevalence studies; in any case, a substantial change of circumstances is deemed not to have occurred if the sales volume of the product category at retail level does not exceed 2,5 % of total sales of tobacco products at Union level;

(29)

‘outside packaging’ means any packaging in which tobacco or related products are placed on the market and which includes a unit packet or an aggregation of unit packets; transparent wrappers are not regarded as outside packaging;

(30)

‘unit packet’ means the smallest individual packaging of a tobacco or related product that is placed on the market;

(31)

‘pouch’ means a unit packet of roll-your own tobacco, either in the form of a rectangular pocket with a flap that covers the opening or in the form of a standing pouch;

(32)

‘health warning’ means a warning concerning the adverse effects on human health of a product or other undesired consequences of its consumption, including text warnings, combined health warnings, general warnings and information messages, as provided for in this Directive;

(33)

‘combined health warning’ means a health warning consisting of a combination of a text warning and a corresponding photograph or illustration, as provided for in this Directive;

(34)

‘cross-border distance sales’ means distance sales to consumers where, at the time the consumer orders the product from a retail outlet, the consumer is located in a Member State other than the Member State or the third country where that retail outlet is established; a retail outlet is deemed to be established in a Member State:

(a)

in the case of a natural person: if he or she has his or her place of business in that Member State;

(b)

in other cases: if the retail outlet has its statutory seat, central administration or place of business, including a branch, agency or any other establishment, in that Member State;

(35)

‘consumer’ means a natural person who is acting for purposes which are outside his or her trade, business, craft or profession;

(36)

‘age verification system’ means a computing system that unambiguously confirms the consumer's age electronically in accordance with national requirements;

(37)

‘manufacturer’ means any natural or legal person who manufactures a product or has a product designed or manufactured, and markets that product under their name or trademark;

(38)

‘import of tobacco or related products’ means the entry into the territory of the Union of such products unless the products are placed under a customs suspensive procedure or arrangement upon their entry into the Union, as well as their release from a customs suspensive procedure or arrangement;

(39)

‘importer of tobacco or related products’ means the owner of, or a person having the right of disposal over, tobacco or related products that have been brought into the territory of the Union;

(40)

‘placing on the market’ means to make products, irrespective of their place of manufacture, available to consumers located in the Union, with or without payment, including by means of distance sale; in the case of cross-border distance sales the product is deemed to be placed on the market in the Member State where the consumer is located;

(41)

‘retail outlet’ means any outlet where tobacco products are placed on the market including by a natural person.

TITLE II

TOBACCO PRODUCTS

CHAPTER I

Ingredients and emissions

Article 3

Maximum emission levels for tar, nicotine, carbon monoxide and other substances

1.   The emission levels from cigarettes placed on the market or manufactured in the Member States (‘maximum emission levels’) shall not be greater than:

(a)

10 mg of tar per cigarette;

(b)

1 mg of nicotine per cigarette;

(c)

10 mg of carbon monoxide per cigarette.

2.   The Commission shall be empowered to adopt delegated acts in accordance with Article 27 to decrease the maximum emission levels laid down in paragraph 1, where this is necessary based on internationally agreed standards.

3.   Member States shall notify the Commission of any maximum emission levels they set for emissions from cigarettes other than the emissions referred to in paragraph 1 and for emissions from tobacco products other than cigarettes.

4.   The Commission shall adopt delegated acts in accordance with Article 27 to integrate standards agreed by the parties to the FCTC or by the WHO relating to maximum emission levels for emissions from cigarettes other than the emissions referred to in paragraph 1 and for emissions from tobacco products other than cigarettes into Union law.

Article 4

Measurement methods

1.   The tar, nicotine and carbon monoxide emissions from cigarettes shall be measured on the basis of ISO standard 4387 for tar, ISO standard 10315 for nicotine, and ISO standard 8454 for carbon monoxide.

The accuracy of the tar, nicotine and carbon monoxide measurements shall be determined in accordance with ISO standard 8243.

2.   The measurements referred to in paragraph 1 shall be verified by laboratories which are approved and monitored by the competent authorities of the Member States.

Those laboratories shall not be owned or controlled directly or indirectly by the tobacco industry.

Member States shall communicate to the Commission a list of approved laboratories, specifying the criteria used for approval and the methods of monitoring applied, and shall update that list whenever any change is made. The Commission shall make those lists of approved laboratories publicly available.

3.   The Commission shall be empowered to adopt delegated acts in accordance with Article 27 to adapt the methods of measurement of the tar, nicotine and carbon monoxide emissions, where this is necessary, based on scientific and technical developments or internationally agreed standards.

4.   Member States shall notify the Commission of any measurement methods they use for emissions from cigarettes other than the emissions referred to in paragraph 3 and for emissions from tobacco products other than cigarettes.

5.   The Commission shall adopt delegated acts in accordance with Article 27 to integrate standards agreed by the parties to the FCTC or by the WHO for measurement methods into Union law.

6.   Member States may charge manufacturers and importers of tobacco products proportionate fees for the verification of the measurements referred to in paragraph 1 of this Article.

Article 5

Reporting of ingredients and emissions

1.   Member States shall require manufacturers and importers of tobacco products to submit to their competent authorities the following information by brand name and type:

(a)

a list of all ingredients, and quantities thereof, used in the manufacture of the tobacco products, in descending order of the weight of each ingredient included in the tobacco products;

(b)

the emission levels referred to in Article 3(1) and (4);

(c)

where available, information on other emissions and their levels.

For products already placed on the market that information shall be provided by 20 November 2016.

Manufacturers or importers shall also inform the competent authorities of the Member States concerned, if the composition of a product is modified in a way that affects the information provided under this Article.

For a new or modified tobacco product the information required under this Article shall be submitted prior to the placing on the market of those products.

2.   The list of ingredients referred to in point (a) of paragraph 1 shall be accompanied by a statement setting out the reasons for the inclusion of such ingredients in the tobacco products concerned. That list shall also indicate the status of the ingredients, including whether they have been registered under Regulation (EC) No 1907/2006 of the European Parliament and of the Council (16) as well as their classification under Regulation (EC) No 1272/2008 of the European Parliament and of the Council (17).

3.   The list referred to in point (a) of paragraph 1 shall also be accompanied by the relevant toxicological data regarding the ingredients in burnt or unburnt form, as appropriate, referring in particular to their effects on the health of consumers and taking into account, inter alia, any addictive effects.

Furthermore, for cigarettes and roll-your-own tobacco, a technical document setting out a general description of the additives used and their properties, shall be submitted by the manufacturer or importer.

Other than for tar, nicotine and carbon monoxide and for emissions referred to in Article 4(4), manufacturers and importers shall indicate the methods of measurement of emissions used. Member States may also require manufacturers or importers to carry out studies as may be prescribed by the competent authorities in order to assess the effects of ingredients on health, taking into account, inter alia, their addictiveness and toxicity.

4.   Member States shall ensure that the information submitted in accordance with paragraph 1 of this Article and of Article 6 is made publicly available on a website. The Member States shall take the need to protect trade secrets duly into account when making that information publicly available. Member States shall require manufacturers and importers to specify, when submitting the information pursuant to paragraph 1 of this Article and Article 6, the information which they consider to constitute trade secrets.

5.   The Commission shall, by means of implementing acts, lay down and, if necessary, update the format for the submission and the making available of information referred to in paragraphs 1 and 6 of this Article and Article 6. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 25(2).

6.   Member States shall require manufacturers and importers to submit internal and external studies available to them on market research and preferences of various consumer groups, including young people and current smokers, relating to ingredients and emissions, as well as executive summaries of any market surveys they carry out when launching new products. Member States shall also require manufacturers and importers to report their sales volumes per brand and type, reported in sticks or kilograms, and per Member State on a yearly basis starting from 1 January 2015. Member States shall provide any other sales volume data that is available to them.

7.   All data and information to be provided to and by Member States under this Article and under Article 6 shall be provided in electronic form. Member States shall store the information electronically and shall ensure that the Commission and other Member States have access to that information for the purposes of applying this Directive. Member States and the Commission shall ensure that trade secrets and other confidential information are treated in a confidential manner.

8.   Member States may charge manufacturers and importers of tobacco products proportionate fees for receiving, storing, handling, analysing and publishing the information submitted to them pursuant to this Article.

Article 6

Priority list of additives and enhanced reporting obligations

1.   In addition to the reporting obligations laid down in Article 5, enhanced reporting obligations shall apply to certain additives contained in cigarettes and roll-your-own tobacco that are included in a priority list. The Commission shall adopt implementing acts laying down and subsequently updating such a priority list of additives. This list shall contain additives:

(a)

for which initial indications, research, or regulation in other jurisdictions exist suggesting that they have one of the properties set out in points (a) to (d) of paragraph 2 of this Article; and

(b)

which are amongst the most commonly used additives by weight or number according to the reporting of ingredients pursuant to paragraphs 1 and 3 of Article 5.

Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 25(2). A first list of additives shall be adopted by 20 May 2016 and shall contain at least 15 additives.

2.   Member States shall require manufacturers and importers of cigarettes and roll-your-own tobacco containing an additive that is included in the priority list provided for in paragraph 1, to carry out comprehensive studies, which shall examine for each additive whether it:

(a)

contributes to the toxicity or addictiveness of the products concerned, and whether this has the effect of increasing the toxicity or addictiveness of any of the products concerned to a significant or measurable degree;

(b)

results in a characterising flavour;

(c)

facilitates inhalation or nicotine uptake; or

(d)

leads to the formation of substances that have CMR properties, the quantities thereof, and whether this has the effect of increasing the CMR properties in any of the products concerned to a significant or measurable degree.

3.   Those studies shall take into account the intended use of the products concerned and examine in particular the emissions resulting from the combustion process involving the additive concerned. The studies shall also examine the interaction of that additive with other ingredients contained in the products concerned. Manufacturers or importers using the same additive in their tobacco products may carry out a joint study when using that additive in a comparable product composition.

4.   Manufacturers or importers shall establish a report on the results of these studies. That report shall include an executive summary, and a comprehensive overview compiling the available scientific literature on that additive and summarising internal data on the effects of the additive.

Manufacturers or importers shall submit these reports to the Commission and a copy thereof to the competent authorities of those Member States where a tobacco product containing this additive is placed on the market at the latest 18 months after the additive concerned has been included in the priority list pursuant to paragraph 1. The Commission and the Member States concerned may also request supplementary information from manufacturers or importers regarding the additive concerned. This supplementary information shall form part of the report.

The Commission and the Member States concerned may require these reports to be peer reviewed by an independent scientific body, in particular as regards their comprehensiveness, methodology and conclusions. The information received shall assist the Commission and Member States in taking the decisions pursuant to Article 7. The Member States and the Commission may charge manufacturers and importers of tobacco products proportionate fees for those peer reviews.

5.   Small and medium-sized enterprises as defined in Commission Recommendation 2003/361/EC (18) shall be exempted from the obligations pursuant to this Article, if a report on that additive is prepared by another manufacturer or importer.

Article 7

Regulation of ingredients

1.   Member States shall prohibit the placing on the market of tobacco products with a characterising flavour.

Member States shall not prohibit the use of additives which are essential for the manufacture of tobacco products, for example sugar to replace sugar that is lost during the curing process, provided those additives do not result in a product with a characterising flavour and do not increase to a significant or measureable degree the addictiveness, toxicity or the CMR properties of the tobacco product.

Member States shall notify the Commission of the measures taken pursuant to this paragraph.

2.   The Commission shall, at the request of a Member State, or may, on its own initiative, determine by means of implementing acts whether a tobacco product falls within the scope of paragraph 1. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 25(2).

3.   The Commission shall adopt implementing acts laying down uniform rules for the procedures for determining whether a tobacco product falls within the scope of paragraph 1. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 25(2).

4.   An independent advisory panel shall be established at Union level. Member States and the Commission may consult this panel before adopting a measure pursuant to paragraphs 1 and 2 of this Article. The Commission shall adopt implementing acts laying down the procedures for the establishment and operation of this panel.

Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 25(2).

5.   Where the content level or concentration of certain additives or the combination thereof has resulted in prohibitions pursuant to paragraph 1 of this Article in at least three Member States, the Commission shall be empowered to adopt delegated acts in accordance with Article 27 to set maximum content levels for those additives or combination of additives that result in the characterising flavour.

6.   Member States shall prohibit the placing on the market of tobacco products containing the following additives:

(a)

vitamins or other additives that create the impression that a tobacco product has a health benefit or presents reduced health risks;

(b)

caffeine or taurine or other additives and stimulant compounds that are associated with energy and vitality;

(c)

additives having colouring properties for emissions;

(d)

for tobacco products for smoking, additives that facilitate inhalation or nicotine uptake; and

(e)

additives that have CMR properties in unburnt form.

7.   Member States shall prohibit the placing on the market of tobacco products containing flavourings in any of their components such as filters, papers, packages, capsules or any technical features allowing modification of the smell or taste of the tobacco products concerned or their smoke intensity. Filters, papers and capsules shall not contain tobacco or nicotine.

8.   Member States shall ensure that the provisions and conditions laid down in Regulation (EC) No 1907/2006 are applied to tobacco products as appropriate.

9.   Member States shall, on the basis of scientific evidence, prohibit the placing on the market of tobacco products containing additives in quantities that increase the toxic or addictive effect, or the CMR properties of a tobacco product at the stage of consumption to a significant or measureable degree.

Member States shall notify to the Commission the measures they have taken pursuant to this paragraph.

10.   The Commission shall, at the request of a Member State, or may, on its own initiative, determine by means of an implementing act whether a tobacco product falls within the scope of paragraph 9. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 25(2) and shall be based on the latest scientific evidence.

11.   Where an additive or a certain quantity thereof has been shown to amplify the toxic or addictive effect of a tobacco product, and where this has resulted in prohibitions pursuant to paragraph (9) of this Article in at least three Member States, the Commission shall be empowered to adopt delegated acts in accordance with Article 27 to set maximum content levels for those additives. In this case, the maximum content level shall be set at the lowest maximum level that led to one of the national prohibitions referred to in this paragraph.

12.   Tobacco products other than cigarettes and roll-your-own tobacco shall be exempted from the prohibitions laid down in paragraphs 1 and 7. The Commission shall adopt delegated acts in accordance with Article 27 to withdraw that exemption for a particular product category, if there is a substantial change of circumstances as established in a Commission report.

13.   The Member States and the Commission may charge proportionate fees to manufacturers and importers of tobacco products for assessing whether a tobacco product has a characterising flavour, whether prohibited additives or flavourings are used and whether a tobacco product contains additives in quantities that increase to a significant and measurable degree the toxic or addictive effect or the CMR properties of the tobacco product concerned.

14.   In the case of tobacco products with a characterising flavour whose Union-wide sales volumes represent 3 % or more in a particular product category, the provisions of this Article shall apply from 20 May 2020.

15.   This Article shall not apply to tobacco for oral use.

CHAPTER II

Labelling and packaging

Article 8

General provisions

1.   Each unit packet of a tobacco product and any outside packaging shall carry the health warnings provided for in this Chapter in the official language or languages of the Member State where the product is placed on the market.

2.   Health warnings shall cover the entire surface of the unit packet or outside packaging that is reserved for them and they shall not be commented on, paraphrased or referred to in any form.

3.   Member States shall ensure that the health warnings on a unit packet and any outside packaging are irremovably printed, indelible and fully visible, including not being partially or totally hidden or interrupted by tax stamps, price marks, security features, wrappers, jackets, boxes, or other items, when tobacco products are placed on the market. On unit packets of tobacco products other than cigarettes and roll-your-own tobacco in pouches, the health warnings may be affixed by means of stickers, provided that such stickers are irremovable. The health warnings shall remain intact when opening the unit packet other than packets with a flip-top lid, where the health warnings may be split when opening the packet, but only in a manner that ensures the graphical integrity and visibility of the text, photographs and cessation information.

4.   The health warnings shall in no way hide or interrupt the tax stamps, price marks, tracking and tracing marks, or security features on unit packets.

5.   The dimensions of the health warnings provided for in Articles 9, 10, 11 and 12 shall be calculated in relation to the surface concerned when the packet is closed.

6.   Health warnings shall be surrounded by a black border of a width of 1 mm inside the surface area that is reserved for these warnings, except for health warnings pursuant to Article 11.

7.   When adapting a health warning pursuant to Articles 9(5), 10(3) and 12(3), the Commission shall ensure that it is factual or that Member States shall have a choice of two warnings, one of which is factual.

8.   Images of unit packets and any outside packaging targeting consumers in the Union shall comply with the provisions of this chapter.

Article 9

General warnings and information messages on tobacco products for smoking

1.   Each unit packet and any outside packaging of tobacco products for smoking shall carry one of the following general warnings:

‘Smoking kills – quit now’

or

‘Smoking kills’

Member States shall determine which of the general warnings referred to in the first subparagraph is to be used.

2.   Each unit packet and any outside packaging of tobacco products for smoking shall carry the following information message:

‘Tobacco smoke contains over 70 substances known to cause cancer.’

3.   For cigarette packets and roll-your-own tobacco in cuboid packets the general warning shall appear on the bottom part of one of the lateral surfaces of the unit packets, and the information message shall appear on the bottom part of the other lateral surface. These health warnings shall have a width of not less than 20 mm.

For packets in the form of a shoulder box with a hinged lid that result in the lateral surfaces being split into two when the packet is open, the general warning and the information message shall appear in their entirety on the larger parts of those split surfaces. The general warning shall also appear on the inside of the top surface that is visible when the packet is open.

The lateral surfaces of this type of packet shall have a height of not less than 16 mm.

For roll-your-own tobacco marketed in pouches the general warning and the information message shall appear on the surfaces that ensure the full visibility of those health warnings. For roll-your-own tobacco in cylindrical packets the general warning shall appear on the outside surface of the lid and the information message on the inside surface of the lid.

Both the general warning and the information message shall cover 50 % of the surfaces on which they are printed.

4.   The general warning and information message referred to in paragraphs 1 and 2 shall be:

(a)

printed in black Helvetica bold type on a white background. In order to accommodate language requirements, Member States may determine the font size, provided that the font size specified in national law ensures that the relevant text occupies the greatest possible proportion of the surface reserved for these health warnings; and

(b)

at the centre of the surface reserved for them, and on cuboid packets and any outside packaging they shall be parallel to the lateral edge of the unit packet or of the outside packaging.

5.   The Commission shall be empowered to adopt delegated acts in accordance with Article 27 to adapt the wording of the information message laid down in paragraph 2 to scientific and market developments.

6.   The Commission shall, by means of implementing acts, determine the precise position of the general warning and the information message on roll-your-own tobacco marketed in pouches, taking into account the different shapes of pouches.

Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 25(2).

Article 10

Combined health warnings for tobacco products for smoking

1.   Each unit packet and any outside packaging of tobacco products for smoking shall carry combined health warnings. The combined health warnings shall:

(a)

contain one of the text warnings listed in Annex I and a corresponding colour photograph specified in the picture library in Annex II;

(b)

include smoking cessation information such as telephone numbers, e-mail addresses or Internet sites intending to inform consumers about the programmes that are available to support persons who want to stop smoking;

(c)

cover 65 % of both the external front and back surface of the unit packet and any outside packaging. Cylindrical packets shall display two combined health warnings, equidistant from each other, each covering 65 % of their respective half of the curved surface;

(d)

show the same text warning and corresponding colour photograph on both sides of the unit packets and any outside packaging;

(e)

appear at the top edge of a unit packet and any outside packaging, and be positioned in the same direction as any other information appearing on that surface of the packaging. Transitional exemptions from that obligation on the position of the combined health warning may apply in Member States where tax stamps or national identification marks used for fiscal purposes remain mandatory, as follows:

(i)

in those cases, where the tax stamp or national identification mark used for fiscal purposes is affixed at the top edge of a unit packet made of carton material, the combined health warning that is to appear on the back surface may be positioned directly below the tax stamp or national identification mark;

(ii)

where a unit packet is made of soft material, Member States may allow for a rectangular area to be reserved for the tax stamp or national identification mark used for fiscal purposes of a height not exceeding 13 mm between the top edge of the packet and the top end of the combined health warnings.

The exemptions referred to in points (i) and (ii) shall apply for a period of three years from 20 May 2016. Brand names or logos shall not be positioned above the health warnings;

(f)

be reproduced in accordance with the format, layout, design and proportions specified by the Commission pursuant to paragraph 3;

(g)

in the case of unit packets of cigarettes, respect the following dimensions:

(i)

height: not less than 44 mm;

(ii)

width: not less than 52 mm.

2.   The combined health warnings are grouped into three sets as set out in Annex II and each set shall be used in a given year and rotated on an annual basis. Member States shall ensure that each combined health warning available for use in a given year is displayed to the extent possible in equal numbers on each brand of tobacco products.

3.   The Commission shall be empowered to adopt delegated acts in accordance with Article 27 to:

(a)

adapt the text warnings listed in Annex I taking into account scientific and market developments;

(b)

establish and adapt the picture library referred to in point (a) of paragraph 1 of this Article taking into account scientific and market developments.

4.   The Commission shall by means of implementing acts define the technical specifications for the layout, design and shape of the combined health warnings, taking into account the different packet shapes.

Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 25(2).

Article 11

Labelling of tobacco products for smoking other than cigarettes, roll-your-own tobacco and waterpipe tobacco

1.   Member States may exempt tobacco products for smoking other than cigarettes, roll-your-own tobacco and waterpipe tobacco from the obligations to carry the information message laid down in Article 9(2) and the combined health warnings laid down in Article 10. In that event, and in addition to the general warning provided for in Article 9(1), each unit packet and any outside packaging of such products shall carry one of the text warnings listed in Annex I. The general warning specified in Article 9(1) shall include a reference to the cessation services referred to in Article 10(1)(b).

The general warning shall appear on the most visible surface of the unit packet and any outside packaging.

Member States shall ensure that each text warning is displayed to the extent possible in equal numbers on each brand of these products. The text warnings shall appear on the next most visible surface of the unit packet and any outside packaging.

For unit packets with a hinged lid, the next most visible surface is the one that becomes visible when the packet is open.

2.   The general warning referred to in paragraph 1 shall cover 30 % of the relevant surface of the unit packet and any outside packaging. That proportion shall be increased to 32 % for Member States with two official languages and to 35 % for Member States with more than two official languages.

3.   The text warning referred to in paragraph 1 shall cover 40 % of the relevant surface of the unit packet and any outside packaging. That proportion shall be increased to 45 % for Member States with two official languages and 50 % for Member States with more than two official languages.

4.   Where the health warnings referred to in paragraph 1 are to appear on a surface exceeding 150 cm2, the warnings shall cover an area of 45 cm2. That area shall be increased to 48 cm2 for Member States with two official languages and 52,5 cm2 for Member States with more than two official languages.

5.   The health warnings referred to in paragraph 1 shall comply with the requirements specified in Article 9(4). The text of the health warnings shall be parallel to the main text on the surface reserved for these warnings.

The health warnings shall be surrounded by a black border of a width of not less than 3 mm and not more than 4 mm. This border shall appear outside the surface reserved for the health warnings.

6.   The Commission shall adopt delegated acts in accordance with Article 27, to withdraw the possibility of granting exemptions for any of the particular product categories referred to in paragraph 1 if there is a substantial change of circumstances as established in a Commission report for the product category concerned.

Article 12

Labelling of smokeless tobacco products

1.   Each unit packet and any outside packaging of smokeless tobacco products shall carry the following health warning:

‘This tobacco product damages your health and is addictive.’

2.   The health warning laid down in paragraph 1 shall comply with the requirements specified in Article 9(4). The text of the health warnings shall be parallel to the main text on the surface reserved for these warnings.

In addition, it shall:

(a)

appear on the two largest surfaces of the unit packet and any outside packaging;

(b)

cover 30 % of the surfaces of the unit packet and any outside packaging. That proportion shall be increased to 32 % for Member States with two official languages and 35 % for Member States with more than two official languages.

3.   The Commission shall be empowered to adopt delegated acts in accordance with Article 27 to adapt the wording of the health warning laid down in paragraph 1 to scientific developments.

Article 13

Product presentation

1.   The labelling of unit packets and any outside packaging and the tobacco product itself shall not include any element or feature that:

(a)

promotes a tobacco product or encourages its consumption by creating an erroneous impression about its characteristics, health effects, risks or emissions; labels shall not include any information about the nicotine, tar or carbon monoxide content of the tobacco product;

(b)

suggests that a particular tobacco product is less harmful than others or aims to reduce the effect of some harmful components of smoke or has vitalising, energetic, healing, rejuvenating, natural, organic properties or has other health or lifestyle benefits;

(c)

refers to taste, smell, any flavourings or other additives or the absence thereof;

(d)

resembles a food or a cosmetic product;

(e)

suggests that a certain tobacco product has improved biodegradability or other environmental advantages.

2.   The unit packets and any outside packaging shall not suggest economic advantages by including printed vouchers, offering discounts, free distribution, two-for-one or other similar offers.

3.   The elements and features that are prohibited pursuant to paragraphs 1 and 2 may include but are not limited to texts, symbols, names, trademarks, figurative or other signs.

Article 14

Appearance and content of unit packets

1.   Unit packets of cigarettes shall have a cuboid shape. Unit packets of roll-your-own tobacco shall have a cuboid or cylindrical shape, or the form of a pouch. A unit packet of cigarettes shall include at least 20 cigarettes. A unit packet of roll-your-own tobacco shall contain tobacco weighing not less than 30 g.

2.   A unit packet of cigarettes may consist of carton or soft material and shall not have an opening that can be re-closed or re-sealed after it is first opened, other than the flip-top lid and shoulder box with a hinged lid. For packets with a flip-top lid and hinged lid, the lid shall be hinged only at the back of the unit packet.

Article 15

Traceability

1.   Member States shall ensure that all unit packets of tobacco products are marked with a unique identifier. In order to ensure the integrity of the unique identifier, it shall be irremovably printed or affixed, indelible and not hidden or interrupted in any form, including through tax stamps or price marks, or by the opening of the unit packet. In the case of tobacco products that are manufactured outside of the Union, the obligations laid down in this Article apply only to those that are destined for, or placed on, the Union market.

2.   The unique identifier shall allow the following to be determined:

(a)

the date and place of manufacturing;

(b)

the manufacturing facility;

(c)

the machine used to manufacture the tobacco products;

(d)

the production shift or time of manufacture;

(e)

the product description;

(f)

the intended market of retail sale;

(g)

the intended shipment route;

(h)

where applicable, the importer into the Union;

(i)

the actual shipment route from manufacturing to the first retail outlet, including all warehouses used as well as the shipment date, shipment destination, point of departure and consignee;

(j)

the identity of all purchasers from manufacturing to the first retail outlet; and

(k)

the invoice, order number and payment records of all purchasers from manufacturing to the first retail outlet.

3.   The information referred to in points (a), (b), (c), (d), (e), (f), (g) and, where applicable, (h) of paragraph 2 shall form part of the unique identifier.

4.   Member States shall ensure that the information mentioned in points (i), (j) and (k) of paragraph 2 is electronically accessible by means of a link to the unique identifier.

5.   Member States shall ensure that all economic operators involved in the trade of tobacco products, from the manufacturer to the last economic operator before the first retail outlet, record the entry of all unit packets into their possession, as well as all intermediate movements and the final exit of the unit packets from their possession. This obligation may be complied with by the marking and recording of aggregated packaging such as cartons, mastercases or pallets, provided that the tracking and tracing of all unit packets remains possible.

6.   Member States shall ensure that all natural and legal persons engaged in the supply chain of tobacco products maintain complete and accurate records of all relevant transactions.

7.   Member States shall ensure that the manufacturers of tobacco products provide all economic operators involved in the trade of tobacco products, from the manufacturer to the last economic operator before the first retail outlet, including importers, warehouses and transporting companies, with the equipment that is necessary for the recording of the tobacco products purchased, sold, stored, transported or otherwise handled. That equipment shall be able to read and transmit the recorded data electronically to a data storage facility pursuant to paragraph 8.

8.   Member States shall ensure that manufacturers and importers of tobacco products conclude data storage contracts with an independent third party, for the purpose of hosting the data storage facility for all relevant data. The data storage facility shall be physically located on the territory of the Union. The suitability of the third party, in particular its independence and technical capacities, as well as the data storage contract, shall be approved by the Commission.

The third party's activities shall be monitored by an external auditor, who is proposed and paid by the tobacco manufacturer and approved by the Commission. The external auditor shall submit an annual report to the competent authorities and to the Commission, assessing in particular any irregularities in relation to access.

Member States shall ensure that the Commission, the competent authorities of the Member States, and the external auditor have full access to the data storage facilities. In duly justified cases the Commission or the Member States may grant manufacturers or importers access to the stored data, provided that commercially sensitive information remains adequately protected in conformity with the relevant Union and national law.

9.   Recorded data shall not be modified or deleted by an economic operator involved in the trade of tobacco products.

10.   Member States shall ensure that personal data are only processed in accordance with the rules and safeguards laid down in Directive 95/46/EC.

11.   The Commission shall, by means of implementing acts:

(a)

determine the technical standards for the establishment and the operation of the tracking and tracing system as provided for in this Article, including the marking with a unique identifier, the recording, transmitting, processing and storing of data and access to stored data;

(b)

determine the technical standards for ensuring that the systems used for the unique identifier and the related functions are fully compatible with each other across the Union.

Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 25(2).

12.   The Commission shall be empowered to adopt delegated acts in accordance with Article 27 to define the key elements of the data storage contracts referred to in paragraph 8 of this Article, such as duration, renewability, expertise required or confidentiality, including the regular monitoring and evaluation of those contracts.

13.   Paragraphs 1 to 10 shall apply to cigarettes and roll-your-own tobacco from 20 May 2019 and to tobacco products other than cigarettes and roll-your-own tobacco from 20 May 2024.

Article 16

Security feature

1.   In addition to the unique identifier referred to in Article 15, Member States shall require that all unit packets of tobacco products, which are placed on the market, carry a tamper proof security feature, composed of visible and invisible elements. The security feature shall be irremovably printed or affixed, indelible and not hidden or interrupted in any form, including through tax stamps and price marks, or other elements imposed by legislation.

Member States requiring tax stamps or national identification marks used for fiscal purposes may allow that they are used for the security feature provided that the tax stamps or national identification marks fulfil all of the technical standards and functions required under this Article.

2.   The Commission shall, by means of implementing acts, define the technical standards for the security feature and their possible rotation and adapt them to scientific, market and technical developments.

Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 25(2).

3.   Paragraph 1 shall apply to cigarettes and roll-your-own tobacco from 20 May 2019 and to tobacco products other than cigarettes and roll-your-own tobacco from 20 May 2024.

CHAPTER III

Tobacco for oral use, cross-border distance sales of tobacco products and novel tobacco products

Article 17

Tobacco for oral use

Member States shall prohibit the placing on the market of tobacco for oral use, without prejudice to Article 151 of the Act of Accession of Austria, Finland and Sweden.

Article 18

Cross-border distance sales of tobacco products

1.   Member States may prohibit cross-border distance sales of tobacco products to consumers. Member States shall cooperate to prevent such sales. Retail outlets engaging in cross-border distance sales of tobacco products may not supply such products to consumers in Member States where such sales have been prohibited. Member States which do not prohibit such sales shall require retail outlets intending to engage in cross-border distance sales to consumers located in the Union to register with the competent authorities in the Member State, where the retail outlet is established, and in the Member State, where the actual or potential consumers are located. Retail outlets established outside the Union shall be required to register with the competent authorities in the Member State where the actual or potential consumers are located. All retail outlets intending to engage in cross-border distance sales shall submit at least the following information to the competent authorities when registering:

(a)

name or corporate name and permanent address of the place of activity from where the tobacco products will be supplied;

(b)

the starting date of the activity of offering tobacco products for cross-border distance sales to consumers by means of Information Society services, as defined in point 2 of Article 1 of Directive 98/34/EC;

(c)

the address of the website or websites used for that purpose and all relevant information necessary to identify the website.

2.   The competent authorities of the Member States shall ensure that consumers have access to the list of all retail outlets registered with them. When making that list available, Member States shall ensure that the rules and safeguards laid down in Directive 95/46/EC are complied with. Retail outlets may only start placing tobacco products on the market via cross-border distance sales when they have received confirmation of their registration with the relevant competent authority.

3.   The Member States of destination of tobacco products sold via cross-border distance sales may require that the supplying retail outlet nominates a natural person to be responsible for verifying — before the tobacco products reach the consumer — that they comply with the national provisions adopted pursuant to this Directive in the Member State of destination, if such verification is necessary in order to ensure compliance and facilitate enforcement.

4.   Retail outlets engaged in cross-border distance sales shall operate an age verification system, which verifies, at the time of sale, that the purchasing consumer complies with minimum age requirements provided for under the national law of the Member State of destination. The retail outlet or natural person nominated pursuant to paragraph 3 shall provide to the competent authorities of that Member State a description of the details and functioning of the age verification system.

5.   Retail outlets shall only process personal data of the consumer in accordance with Directive 95/46/EC and those data shall not be disclosed to the manufacturer of tobacco products or companies forming part of the same group of companies or to other third parties. Personal data shall not be used or transferred for purposes other than the actual purchase. This also applies if the retail outlet forms part of a manufacturer of tobacco products.

Article 19

Notification of novel tobacco products

1.   Member Stes shall require manufacturers and importers of novel tobacco products to submit a notification to the competent authorities of Member States of any such product they intend to place on the national market concerned. The notification shall be submitted in electronic form six months before the intended placing on the market. It shall be accompanied by a detailed description of the novel tobacco product concerned as well as instructions for its use and information on ingredients and emissions in accordance with Article 5. The manufacturers and importers submitting a notification of a novel tobacco product shall also provide the competent authorities with:

(a)

available scientific studies on toxicity, addictiveness and attractiveness of the novel tobacco product, in particular as regards its ingredients and emissions;

(b)

available studies, executive summaries thereof and market research on the preferences of various consumer groups, including young people and current smokers;

(c)

other available and relevant information, including a risk/benefit analysis of the product, its expected effects on cessation of tobacco consumption, its expected effects on initiation of tobacco consumption and predicted consumer perception.

2.   Member States shall require manufacturers and importers of novel tobacco products to transmit to their competent authorities any new or updated information on the studies, research and other information referred to in points (a) to (c) of paragraph 1. Member States may require manufacturers or importers of novel tobacco products to carry out additional tests or submit additional information. Member States shall make all information received pursuant to this Article available to the Commission.

3.   Member States may introduce a system for the authorisation of novel tobacco products. Member States may charge manufacturers and importers proportionate fees for that authorisation.

4.   Novel tobacco products placed on the market shall respect the requirements of this Directive. Which of the provisions of this Directive apply to novel tobacco products depends on whether those products fall under the definition of a smokeless tobacco product or of a tobacco product for smoking.

TITLE III

ELECTRONIC CIGARETTES AND HERBAL PRODUCTS FOR SMOKING

Article 20

Electronic cigarettes

1.   The Member States shall ensure that electronic cigarettes and refill containers are only placed on the market if they comply with this Directive and with all other relevant Union legislation.

This Directive does not apply to electronic cigarettes and refill containers that are subject to an authorisation requirement under Directive 2001/83/EC or to the requirements set out in Directive 93/42/EEC.

2.   Manufacturers and importers of electronic cigarettes and refill containers shall submit a notification to the competent authorities of the Member States of any such products which they intend to place on the market. The notification shall be submitted in electronic form six months before the intended placing on the market. For electronic cigarettes and refill containers already placed on the market on 20 May 2016, the notification shall be submitted within six months of that date. A new notification shall be submitted for each substantial modification of the product.

The notification shall, depending on whether the product is an electronic cigarette or a refill container, contain the following information:

(a)

the name and contact details of the manufacturer, a responsible legal or natural person within the Union, and, if applicable, the importer into the Union;

(b)

a list of all ingredients contained in, and emissions resulting from the use of, the product, by brand name and type, including quantities thereof;

(c)

toxicological data regarding the product's ingredients and emissions, including when heated, referring in particular to their effects on the health of consumers when inhaled and taking into account, inter alia, any addictive effect;

(d)

information on the nicotine doses and uptake when consumed under normal or reasonably foreseeable conditions;

(e)

a description of the components of the product; including, where applicable, the opening and refill mechanism of the electronic cigarette or refill containers;

(f)

a description of the production process, including whether it involves series production, and a declaration that the production process ensures conformity with the requirements of this Article;

(g)

a declaration that the manufacturer and importer bear full responsibility for the quality and safety of the product, when placed on the market and used under normal or reasonably foreseeable conditions.

Where Member States consider that the information submitted is incomplete, they shall be entitled to request the completion of the information concerned.

Member States may charge manufacturers and importers proportionate fees for receiving, storing, handling and analysing the information submitted to them.

3.   Member States shall ensure that:

(a)

nicotine-containing liquid is only placed on the market in dedicated refill containers not exceeding a volume of 10 ml, in disposable electronic cigarettes or in single use cartridges and that the cartridges or tanks do not exceed a volume of 2 ml;

(b)

the nicotine-containing liquid does not contain nicotine in excess of 20 mg/ml;

(c)

the nicotine-containing liquid does not contain additives listed in Article 7(6);

(d)

only ingredients of high purity are used in the manufacture of the nicotine-containing liquid. Substances other than the ingredients referred to in point (b) of the second subparagraph of paragraph 2 of this Article are only present in the nicotine-containing liquid in trace levels, if such traces are technically unavoidable during manufacture;

(e)

except for nicotine, only ingredients are used in the nicotine-containing liquid that do not pose a risk to human health in heated or unheated form;

(f)

electronic cigarettes deliver the nicotine doses at consistent levels under normal conditions of use;

(g)

electronic cigarettes and refill containers are child- and tamper-proof, are protected against breakage and leakage and have a mechanism that ensures refilling without leakage.

4.   Member States shall ensure that:

(a)

unit packets of electronic cigarettes and refill containers include a leaflet with information on:

(i)

instructions for use and storage of the product, including a reference that the product is not recommended for use by young people and non-smokers;

(ii)

contra-indications;

(iii)

warnings for specific risk groups;

(iv)

possible adverse effects;

(v)

addictiveness and toxicity; and

(vi)

contact details of the manufacturer or importer and a legal or natural contact person within the Union;

(b)

unit packets and any outside packaging of electronic cigarettes and refill containers:

(i)

include a list of all ingredients contained in the product in descending order of the weight, and an indication of the nicotine content of the product and the delivery per dose, the batch number and a recommendation to keep the product out of reach of children;

(ii)

without prejudice to point (i) of this point, do not include elements or features referred to in Article 13, with the exception of Article 13(1)(a) and (c) concerning information on the nicotine content and on flavourings; and

(iii)

carry one of the following health warnings:

‘This product contains nicotine which is a highly addictive substance. It is not recommended for use by non-smokers’.

or

‘This product contains nicotine which is a highly addictive substance.’

Member States shall determine which of these health warnings is to be used;

(c)

health warnings comply with the requirements specified in Article 12(2).

5.   Member States shall ensure that:

(a)

commercial communications in Information Society services, in the press and other printed publications, with the aim or direct or indirect effect of promoting electronic cigarettes and refill containers are prohibited, except for publications that are intended exclusively for professionals in the trade of electronic cigarettes or refill containers and for publications which are printed and published in third countries, where those publications are not principally intended for the Union market;

(b)

commercial communications on the radio, with the aim or direct or indirect effect of promoting electronic cigarettes and refill containers, are prohibited;

(c)

any form of public or private contribution to radio programmes with the aim or direct or indirect effect of promoting electronic cigarettes and refill containers is prohibited;

(d)

any form of public or private contribution to any event, activity or individual person with the aim or direct or indirect effect of promoting electronic cigarettes and refill containers and involving or taking place in several Member States or otherwise having cross-border effects is prohibited;

(e)

audiovisual commercial communications to which Directive 2010/13/EU of the European Parliament and of the Council (19) applies, are prohibited for electronic cigarettes and refill containers.

6.   Article 18 of this Directive shall apply to cross-border distance sales of electronic cigarettes and refill containers.

7.   Member States shall require manufacturers and importers of electronic cigarettes and refill containers to submit, annually, to the competent authorities:

(i)

comprehensive data on sales volumes, by brand name and type of the product;

(ii)

information on the preferences of various consumer groups, including young people, non-smokers and the main types of current users;

(iii)

the mode of sale of the products; and

(iv)

executive summaries of any market surveys carried out in respect of the above, including an English translation thereof.

Member States shall monitor the market developments concerning electronic cigarettes and refill containers, including any evidence that their use is a gateway to nicotine addiction and ultimately traditional tobacco consumption among young people and non-smokers.

8.   Member States shall ensure that the information received pursuant to paragraph 2 is made publicly available on a website. The Member States shall take the need to protect trade secrets duly into account when making that information publicly available.

Member States shall, upon request, make all information received pursuant to this Article available to the Commission and other Member States. The Member States and the Commission shall ensure that trade secrets and other confidential information are treated in a confidential manner.

9.   Member States shall require manufacturers, importers and distributers of electronic cigarettes and refill containers to establish and maintain a system for collecting information about all of the suspected adverse effects on human health of these products.

Should any of these economic operators consider or have reason to believe that electronic cigarettes or refill containers, which are in their possession and are intended to be placed on the market or are placed on the market, are not safe or are not of good quality or are otherwise not in conformity with this Directive, that economic operator shall immediately take the corrective action necessary to bring the product concerned into conformity with this Directive, to withdraw or to recall it, as appropriate. In such cases the economic operator shall also be required to immediately inform the market surveillance authorities of the Member States in which the product is made available or is intended to be made available, giving details, in particular, of the risk to human health and safety and of any corrective action taken, and of the results of such corrective action.

Member States may also request additional information from the economic operators, for example on the safety and quality aspects or any adverse effects of electronic cigarettes or refill containers.

10.   The Commission shall submit a report to the European Parliament and the Council on the potential risks to public health associated with the use of refillable electronic cigarettes by 20 May 2016 and whenever appropriate thereafter.

11.   In the case of electronic cigarettes and refill containers that comply with the requirements of this Article, where a competent authority ascertains or has reasonable grounds to believe that specific electronic cigarettes or refill containers, or a type of electronic cigarette or refill container, could present a serious risk to human health, it may take appropriate provisional measures. It shall immediately inform the Commission and the competent authorities of other Member States of the measures taken and shall communicate any supporting data. The Commission shall determine, as soon as possible after having received that information, whether the provisional measure is justified. The Commission shall inform the Member State concerned of its conclusions to enable the Member State to take appropriate follow-up measures.

Where, in application of the first subparagraph of this paragraph, the placing on the market of specific electronic cigarettes or refill containers, or a type of electronic cigarette or refill container has been prohibited on duly justified grounds in at least three Member States, the Commission shall be empowered to adopt delegated acts in accordance with Article 27 to extend such a prohibition to all Member States, if such an extension is justified and proportionate.

12.   The Commission shall be empowered to adopt delegated acts in accordance with Article 27 to adapt the wording of the health warning in paragraph 4(b) of this Article. When adapting that health warning, the Commission shall ensure that it is factual.

13.   The Commission shall, by means of an implementing act, lay down a common format for the notification provided for in paragraph 2 and technical standards for the refill mechanism provided for in paragraph 3(g).

These implementing acts shall be adopted in accordance with the examination procedure referred to in Article 25(2).

Article 21

Herbal products for smoking

1.   Each unit packet and any outside packaging of herbal products for smoking shall carry the following health warning:

‘Smoking this product damages your health.’

2.   The health warning shall be printed on the front and back external surface of the unit packet and on any outside packaging.

3.   The health warning shall comply with the requirements set out in Article 9(4). It shall cover 30 % of the area of the corresponding surface of the unit packet and of any outside packaging. That proportion shall be increased to 32 % for Member States with two official languages and to 35 % for Member States with more than two official languages.

4.   Unit packets and any outside packaging of herbal products for smoking shall not include any of the elements or features set out in Article 13(1)(a), (b) and (d) and shall not state that the product is free of additives or flavourings.

Article 22

Reporting of ingredients of herbal products for smoking

1.   Member States shall require manufacturers and importers of herbal products for smoking to submit to their competent authorities a list of all ingredients, and quantities thereof that are used in the manufacture of such products by brand name and type. Manufacturers or importers shall also inform the competent authorities of the Member States concerned when the composition of a product is modified in a way that affects the information submitted pursuant to this Article. The information required under this Article shall be submitted prior to the placing on the market of a new or modified herbal product for smoking.

2.   Member States shall ensure that the information submitted in accordance with paragraph 1 is made publicly available on a website. The Member States shall take the need to protect trade secrets duly into account when making that information publicly available. Economic operators shall specify exactly which information they consider to constitute a trade secret.

TITLE IV

FINAL PROVISIONS

Article 23

Cooperation and enforcement

1.   Member States shall ensure that manufacturers and importers of tobacco and related products provide the Commission and the competent authorities of the Member States with complete and correct information requested pursuant to this Directive and within the time limits set out herein. The obligation to provide the requested information shall lie primarily with the manufacturer, if the manufacturer is established in the Union. The obligation to provide the requested information shall lie primarily with the importer, if the manufacturer is established outside the Union and the importer is established inside the Union. The obligation to provide the requested information shall lie jointly with the manufacturer and the importer if both are established outside the Union.

2.   Member States shall ensure that tobacco and related products which do not comply with this Directive, including the implementing and delegated acts provided for therein, are not placed on the market. Member States shall ensure that tobacco and related products are not placed on the market if the reporting obligations set out in this Directive are not complied with.

3.   Member States shall lay down rules on penalties applicable to infringements of the national provisions adopted pursuant to this Directive and shall take all measures that are necessary to ensure that these penalties are enforced. The penalties provided for shall be effective, proportionate and dissuasive. Any financial administrative penalty that may be imposed as a result of an intentional infringement may be such as to offset the economic advantage sought through the infringement.

4.   The competent authorities of the Member States shall cooperate with each other and with the Commission to ensure the correct application and due enforcement of this Directive and shall transmit to each other all information necessary with a view to applying this Directive in a uniform manner.

Article 24

Free movement

1.   Member States may not, for considerations relating to aspects regulated by this Directive, and subject to paragraphs 2 and 3 of this Article, prohibit or restrict the placing on the market of tobacco or related products which comply with this Directive.

2.   This Directive shall not affect the right of a Member State to maintain or introduce further requirements, applicable to all products placed on its market, in relation to the standardisation of the packaging of tobacco products, where it is justified on grounds of public health, taking into account the high level of protection of human health achieved through this Directive. Such measures shall be proportionate and may not constitute a means of arbitrary discrimination or a disguised restriction on trade between Member States. Those measures shall be notified to the Commission together with the grounds for maintaining or introducing them.

3.   A Member State may also prohibit a certain category of tobacco or related products, on grounds relating to the specific situation in that Member State and provided the provisions are justified by the need to protect public health, taking into account the high level of protection of human health achieved through this Directive. Such national provisions shall be notified to the Commission together with the grounds for introducing them. The Commission shall, within six months of the date of receiving the notification provided for in this paragraph, approve or reject the national provisions after having verified, taking into account the high level of protection of human health achieved through this Directive, whether or not they are justified, necessary and proportionate to their aim and whether or not they are a means of arbitrary discrimination or a disguised restriction on trade between the Member States. In the absence of a decision by the Commission within the period of six months, the national provisions shall be deemed to be approved.

Article 25

Committee procedure

1.   The Commission shall be assisted by a committee. That committee shall be a committee within the meaning of Regulation (EU) No 182/2011.

2.   Where reference is made to this paragraph, Article 5 of Regulation (EU) No 182/2011 shall apply.

3.   Where the opinion of the committee is to be obtained by written procedure, that procedure shall be terminated without result when, within the time-limit for delivery of the opinion, the chair of the committee so decides or a simple majority of committee members so requests.

4.   Where the Committee delivers no opinion, the Commission shall not adopt the draft implementing act and the third subparagraph of Article 5(4) of Regulation (EU) No 182/2011 shall apply.

Article 26

Competent authorities

Member States shall designate the competent authorities that shall be responsible for the implementation and enforcement of the obligations provided for in this Directive within three months of 20 May 2016. Member States shall inform the Commission about the identity of the designated authorities without delay. The Commission shall publish that information in the Official Journal of the European Union.

Article 27

Exercise of the delegation

1.   The power to adopt delegated acts is conferred on the Commission subject to the conditions laid down in this Article.

2.   The power to adopt delegated acts referred to in Articles 3(2) and (4), 4(3) and (5), 7(5), (11) and (12), 9(5), 10(3), 11(6), 12(3), 15(12), 20(11) and (12) shall be conferred on the Commission for a period of five years from 19 May 2014. The Commission shall draw up a report in respect of the delegation of power not later than nine months before the end of the five-year period. The delegation of power shall be tacitly extended for periods of an identical duration, unless the European Parliament or the Council opposes such extension not later than three months before the end of each period.

3.   The delegation of powers referred to in Articles 3(2) and(4), 4(3) and (5), 7(5), (11) and (12), 9(5), 10(3), 11(6), 12(3), 15(12), 20(11) and (12) may be revoked at any time by the European Parliament or by the Council. A decision to revoke shall put an end to the delegation of the power specified in that decision. It shall take effect the day following the publication of the decision in the Official Journal of the European Union or at a later date specified therein. It shall not affect the validity of any delegated acts already in force.

4.   As soon as it adopts a delegated act, the Commission shall notify it simultaneously to the European Parliament and to the Council.

5.   A delegated act adopted pursuant to Articles 3(2) and (4), 4(3) and (5), 7(5), (11) and (12), 9(5), 10(3), 11(6), 12(3), 15(12), 20(11) and (12) shall enter into force only if no objection has been expressed either by the European Parliament or the Council within a period of two months of notification of that act to the European Parliament and the Council or if, before the expiry of that period, the European Parliament and the Council have both informed the Commission that they will not object. That period shall be extended by two months at the initiative of the European Parliament or of the Council.

Article 28

Report

1.   No later than five years from 20 May 2016, and whenever necessary thereafter, the Commission shall submit to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions a report on the application of this Directive.

When drafting the report, the Commission shall be assisted by scientific and technical experts in order to have all the necessary information at its disposal.

2.   In the report, the Commission shall indicate, in particular, the elements of the Directive which should be reviewed or adapted in the light of scientific and technical developments, including the development of internationally agreed rules and standards on tobacco and related products. The Commission shall pay special attention to:

(a)

the experience gained with respect to the design of package surfaces not governed by this Directive taking into account national, international, legal, economic and scientific developments;

(b)

market developments concerning novel tobacco products considering, inter alia, notifications received under Article 19;

(c)

market developments which constitute a substantial change of circumstances;

(d)

the feasibility, benefits and possible impact of a European system for the regulation of the ingredients used in tobacco products, including the establishment, at Union level, of a list of ingredients that may be used or present in, or added to tobacco products, taking into account, inter alia, the information collected in accordance with Articles 5 and 6;

(e)

market developments concerning cigarettes with a diameter of less than 7,5 mm, and consumer perception of their harmfulness as well as the misleading character of such cigarettes;

(f)

the feasibility, benefits and possible impact of a Union database containing information on ingredients and emissions from tobacco products collected in accordance with Articles 5 and 6;

(g)

market developments concerning electronic cigarettes and refill containers considering, amongst others, information collected in accordance with Article 20, including on the initiation of consumption such products by young people and non-smokers and the impact of such products on cessation efforts as well as measures taken by Member States regarding flavours;

(h)

market developments and consumer preferences as regards waterpipe tobacco, with a particular focus on its flavours.

The Member States shall assist the Commission and provide all available information for carrying out the assessment and preparing the report.

3.   The report shall be followed-up by proposals for amending this Directive, which the Commission deem necessary to adapt it - to the extent necessary for the smooth functioning of the internal market - to developments in the field of tobacco and related products, and to take into account new developments based on scientific facts and developments concerning internationally agreed standards for tobacco and related products.

Article 29

Transposition

1.   Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 20 May 2016. They shall forthwith communicate to the Commission the text of those provisions.

The Member States shall apply those measures from 20 May 2016, without prejudice to Articles 7(14), 10(1)(e), 15(13) and 16(3).

2.   When Member States adopt these provisions, they shall contain a reference to this Directive or be accompanied by such reference on the occasion of their official publication. They shall also include a statement that references in existing laws, regulations and administrative provisions to the Directive repealed by this Directive shall be construed as references to this Directive. The Member States shall determine how such reference is to be made and how that statement is to be formulated.

3.   Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive.

Article 30

Transitional provision

Member States may allow the following products, which are not in compliance with this Directive, to be placed on the market until 20 May 2017:

(a)

tobacco products manufactured or released for free circulation and labelled in accordance with Directive 2001/37/EC before 20 May 2016;

(b)

electronic cigarettes or refill containers manufactured or released for free circulation before 20 November 2016;

(c)

herbal products for smoking manufactured or released for free circulation before 20 May 2016.

Article 31

Repeal

Directive 2001/37/EC is repealed with effect from 20 May 2016, without prejudice to the obligations of the Member States relating to the time-limits for the transposition into national law of that Directive.

References to the repealed Directive shall be construed as references to this Directive and read in accordance with the correlation table in Annex III to this Directive.

Article 32

Entry into force

This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

Article 33

Addressees

This Directive is addressed to the Member States.

Done at Brussels, 3 April 2014.

For the European Parliament

The President

M. SCHULZ

For the Council

The President

D. KOURKOULAS


(1)  OJ C 327, 12.11.2013, p. 65.

(2)  OJ C 280, 27.9.2013, p. 57.

(3)  Position of the European Parliament of 26 February 2014 (not yet published in the Official Journal) and decision of the Council of 14 March 2014.

(4)  Directive 2001/37/EC of the European Parliament and of the Council of 5 June 2001 on the approximation of the laws, regulations and administrative provisions of the Member States concerning the manufacture, presentation and sale of tobacco products (OJ L 194, 18.7.2001, p. 26).

(5)  Council Recommendation 2003/54/EC of 2 December 2002 on the prevention of smoking and on initiatives to improve tobacco control (OJ L 22, 25.1.2003, p. 31).

(6)  Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’) (OJ L 149, 11.6.2005, p. 22).

(7)  Council Directive 89/622/EEC of 13 November 1989 on the approximation of the laws, regulations and administrative provisions of the Member States concerning the labelling of tobacco products and the prohibition of the marketing of certain types of tobacco for oral use (OJ L 359, 8.12.1989, p. 1).

(8)  Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to medicinal products for human use (OJ L 311, 28.11.2001, p. 67).

(9)  Council Directive 93/42/EEC of 14 June 1993 concerning medical devices (OJ L 169, 12.7.1993, p. 1).

(10)  Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on Information Society services (OJ L 204, 21.7.1998, p. 37).

(11)  Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by Member States of the Commission's exercise of implementing powers (OJ L 55, 28.2.2011, p. 13).

(12)  Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJ L 281, 23.11.1995, p. 31).

(13)  OJ C 369, 17.12.2011, p. 14.

(14)  Council Directive 2011/64/EU of 21 June 2011 on the structure and rates of excise duty applied to manufactured tobacco (OJ L 176, 5.7.2011, p. 24).

(15)  Council Directive 2007/74/EC of 20 December 2007 on the exemption from value added tax and excise duty of goods imported by persons travelling from third countries (OJ L 346, 29.12.2007, p. 6).

(16)  Regulation (EC) No 1907/2006 of the European Parliament and of the Council of 18 December 2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), establishing a European Chemicals Agency, amending Directive 1999/45/EC and repealing Council Regulation (EEC) No 793/93 and Commission Regulation (EC) No 1488/94 as well as Council Directive 76/769/EEC and Commission Directives 91/155/EEC, 93/67/EEC, 93/105/EC and 2000/21/EC (OJ L 396, 30.12.2006, p. 1).

(17)  Regulation (EC) No 1272/2008 of the European Parliament and of the Council of 16 December 2008 on classification, labelling and packaging of substances and mixtures, amending and repealing Directives 67/548/EEC and 1999/45/EC, and amending Regulation (EC) No 1907/2006 (OJ L 353, 31.12.2008, p. 1).

(18)  Commission Recommendation 2003/361/EC of 6 May 2003 concerning the definition of micro, small and medium-sized enterprises (OJ L 124, 20.5.2003, p. 36).

(19)  Directive 2010/13/EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services (Audiovisual Media Services Directive) (OJ L 95, 15.4.2010, p. 1).


ANNEX I

LIST OF TEXT WARNINGS

(referred to in Article 10 and Article 11(1))

(1)

Smoking causes 9 out of 10 lung cancers

(2)

Smoking causes mouth and throat cancer

(3)

Smoking damages your lungs

(4)

Smoking causes heart attacks

(5)

Smoking causes strokes and disability

(6)

Smoking clogs your arteries

(7)

Smoking increases the risk of blindness

(8)

Smoking damages your teeth and gums

(9)

Smoking can kill your unborn child

(10)

Your smoke harms your children, family and friends

(11)

Smokers' children are more likely to start smoking

(12)

Quit smoking – stay alive for those close to you

(13)

Smoking reduces fertility

(14)

Smoking increases the risk of impotence


ANNEX II

PICTURE LIBRARY

(REFERRED TO IN ARTICLE 10(1))

[To be established by the Commission pursuant to Article 10(3)(b).]


ANNEX III

CORRELATION TABLE

Directive 2001/37/EC

This Directive

Article 1

Article 1

Article 2

Article 2

Article 3(1)

Article 3(1)

Article 3(2) and (3)

Article 4(1)

Article 4(1)

Article 4(2)

Article 4(2)

Article 4(3) to (5)

Article 5(1)

Article 5(2) point (a)

Article 9(1)

Article 5(2) point (b)

Article 10(1) point (a) and 10(2), Article 11(1)

Article 5(3)

Article 10(1)

Article 5(4)

Article 12

Article 5(5) first subparagraph

Article 9(3) fifth subparagraph

Article 11(2) and (3)

Article 12(2) point (b)

Article 5(5) second subparagraph

Article 11(4)

Article 5(6) point (a)

Article 9(4) point (a)

Article 5(6) point (b)

Article 5(6) point (c)

Article 9(4) point(b)

Article 5(6) point (d)

Article 8(6) and Article 11(5) second subparagraph

Article 5(6) point (e)

Article 8(1)

Article 5(7)

Article 8(3) and (4)

Article 5(8)

Article 5(9) first subparagraph

Article 15(1) and (2)

Article 5(9) second subparagraph

Article 15(11)

Article 6 (1) first subparagraph

Article 5(1) first subparagraph

Article 6 (1) second subparagraph

Article 5(2) and (3)

Article 6 (1) third subparagraph

Article 6(2)

Article 5(4)

Article 6(3) and (4)

Article 7

Article 13(1) point (b)

Article 8

Article 17

Article 9(1)

Article 4(3)

Article 9(2)

Article 10(2) and (3) point (a)

Article 9(3)

Article 16(2)

Article 10(1)

Article 25(1)

Article 10(2) and (3)

Article 25(2)

Article 11 first and second subparagraphs

Article 28(1) first and second subparagraphs

Article 11 third subparagraph

Article 28(2) first subparagraph

Article 11 fourth subparagraph

Article 28(3)

Article 12

Article 13(1)

Article 24(1)

Article 13(2)

Article 24(2)

Article 13(3)

 

Article 14(1) first subparagraph

Article 29(1) first subparagraph

Article 14(1) second subparagraph

Article 29(2)

Article 14(2) and (3)

Article 30 point (a)

Article 14(4)

Article 29(3)

Article 15

Article 31

Article 16

Article 32

Article 17

Article 33

Annex I (List of additional health warnings)

Annex I (List of text warnings)

Annex II (Time-limits for transposition and implementation of repealed Directives)

Annex III (Correlation table)

Annex III (Correlation table)


29.4.2014   

EN

Official Journal of the European Union

L 127/39


DIRECTIVE 2014/42/EU OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

of 3 April 2014

on the freezing and confiscation of instrumentalities and proceeds of crime in the European Union

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 82(2) and Article 83(1) thereof,

Having regard to the proposal from the European Commission,

After transmission of the draft legislative act to the national parliaments,

Having regard to the opinion of the European Economic and Social Committee (1),

Having regard to the opinion of the Committee of the Regions (2),

Acting in accordance with the ordinary legislative procedure (3),

Whereas:

(1)

The main motive for cross-border organised crime, including mafia-type criminal organisation, is financial gain. As a consequence, competent authorities should be given the means to trace, freeze, manage and confiscate the proceeds of crime. However, the effective prevention of and fight against organised crime should be achieved by neutralising the proceeds of crime and should be extended, in certain cases, to any property deriving from activities of a criminal nature.

(2)

Organised criminal groups operate without borders and increasingly acquire assets in Member States other than those in which they are based and in third countries. There is an increasing need for effective international cooperation on asset recovery and mutual legal assistance.

(3)

Among the most effective means of combating organised crime is providing for severe legal consequences for committing such crime, as well as effective detection and the freezing and confiscation of the instrumentalities and proceeds of crime.

(4)

Although existing statistics are limited, the amounts recovered from proceeds of crime in the Union seem insufficient compared to the estimated proceeds. Studies have shown that, although regulated by Union and national law, confiscation procedures remain underused.

(5)

The adoption of minimum rules will approximate the Member States’ freezing and confiscation regimes, thus facilitating mutual trust and effective cross-border cooperation.

(6)

The Stockholm Programme and the Justice and Home Affairs Council Conclusions on confiscation and asset recovery adopted in June 2010 emphasise the importance of a more effective identification, confiscation and re-use of criminal assets.

(7)

The current Union legal framework on freezing, seizure and confiscation of assets consists of Joint Action 98/699/JHA (4), Council Framework Decision 2001/500/JHA (5), Council Framework Decision 2003/577/JHA (6), Council Framework Decision 2005/212/JHA (7) and Council Framework Decision 2006/783/JHA (8).

(8)

The Commission implementation reports on Framework Decisions 2003/577/JHA, 2005/212/JHA and 2006/783/JHA show that existing regimes for extended confiscation and for the mutual recognition of freezing and confiscation orders are not fully effective. Confiscation is hindered by differences between Member States’ law.

(9)

This Directive aims to amend and expand the provisions of Framework Decisions 2001/500/JHA and 2005/212/JHA. Those Framework Decisions should be partially replaced for the Member States bound by this Directive.

(10)

Member States are free to bring confiscation proceedings which are linked to a criminal case before any competent court.

(11)

There is a need to clarify the existing concept of proceeds of crime to include the direct proceeds from criminal activity and all indirect benefits, including subsequent reinvestment or transformation of direct proceeds. Thus proceeds can include any property including that which has been transformed or converted, fully or in part, into other property, and that which has been intermingled with property acquired from legitimate sources, up to the assessed value of the intermingled proceeds. It can also include the income or other benefits derived from proceeds of crime, or from property into or with which such proceeds have been transformed, converted or intermingled.

(12)

This Directive provides for a broad definition of property that can be subject to freezing and confiscation. That definition includes legal documents or instruments evidencing title or interest in such property. Such documents or instruments could include, for example, financial instruments, or documents that may give rise to creditor claims and are normally found in the possession of the person affected by the relevant procedures. This Directive is without prejudice to the existing national procedures for keeping legal documents or instruments evidencing title or interest in property, as they are applied by the competent national authorities or public bodies in accordance with national law.

(13)

Freezing and confiscation under this Directive are autonomous concepts, which should not prevent Member States from implementing this Directive using instruments which, in accordance with national law, would be considered as sanctions or other types of measures.

(14)

In the confiscation of instrumentalities and proceeds of crime following a final decision of a court and of property of equivalent value to those instrumentalities and proceeds, the broad concept of criminal offences covered by this Directive should apply. Framework Decision 2001/500/JHA requires Member States to enable the confiscation of instrumentalities and proceeds of crime following a final conviction and to enable the confiscation of property the value of which corresponds to such instrumentalities and proceeds. Such obligations should be maintained for the criminal offences not covered by this Directive, and the concept of proceeds as defined in this Directive should be interpreted in the similar way as regards criminal offences not covered by this Directive. Member States are free to define the confiscation of property of equivalent value as subsidiary or alternative to direct confiscation, as appropriate in accordance with national law.

(15)

Subject to a final conviction for a criminal offence, it should be possible to confiscate instrumentalities and proceeds of crime, or property the value of which corresponds to such instrumentalities or proceeds. Such final conviction can also result from proceedings in absentia. When confiscation on the basis of a final conviction is not possible, it should nevertheless under certain circumstances still be possible to confiscate instrumentalities and proceeds, at least in the cases of illness or absconding of the suspected or accused person. However, in such cases of illness and absconding, the existence of proceedings in absentia in Member States would be sufficient to comply with this obligation. When the suspected or accused person has absconded, Member States should take all reasonable steps and may require that the person concerned be summoned to or made aware of the confiscation proceedings.

(16)

For the purposes of this Directive, illness should be understood to mean the inability of the suspected or accused person to attend the criminal proceedings for an extended period, as a result of which the proceedings cannot continue under normal conditions. Suspected or accused persons may be requested to prove illness, for example by a medical certificate, which the court should be able to disregard if it finds it unsatisfactory. The right of that person to be represented in the proceedings by a lawyer should not be affected.

(17)

When implementing this Directive in respect of confiscation of property the value of which corresponds to instrumentalities, the relevant provisions could be applicable where, in view of the particular circumstances of the case at hand, such a measure is proportionate, having regard in particular to the value of the instrumentalities concerned. Member States may also take into account whether and to what extent the convicted person is responsible for making the confiscation of the instrumentalities impossible.

(18)

When implementing this Directive, Member States may provide that, in exceptional circumstances, confiscation should not be ordered, insofar as it would, in accordance with national law, represent undue hardship for the affected person, on the basis of the circumstances of the respective individual case which should be decisive. Member States should make a very restricted use of this possibility, and should only be allowed to provide that confiscation is not to be ordered in cases where it would put the person concerned in a situation in which it would be very difficult for him to survive.

(19)

Criminal groups engage in a wide range of criminal activities. In order to effectively tackle organised criminal activities there may be situations where it is appropriate that a criminal conviction be followed by the confiscation not only of property associated with a specific crime, but also of additional property which the court determines constitutes the proceeds of other crimes. This approach is referred to as extended confiscation. Framework Decision 2005/212/JHA provides for three different sets of minimum requirements that Member States can choose from in order to apply extended confiscation. As a result, in the process of transposition of that Framework Decision, Member States have chosen different options which resulted in divergent concepts of extended confiscation in national jurisdictions. That divergence hampers cross-border cooperation in relation to confiscation cases. It is therefore necessary to further harmonise the provisions on extended confiscation by setting a single minimum standard.

(20)

When determining whether a criminal offence is liable to give rise to economic benefit, Member States may take into account the modus operandi, for example if a condition of the offence is that it was committed in the context of organised crime or with the intention of generating regular profits from criminal offences. However, this should not, in general, prejudice the possibility to resort to extended confiscation.

(21)

Extended confiscation should be possible where a court is satisfied that the property in question is derived from criminal conduct. This does not mean that it must be established that the property in question is derived from criminal conduct. Member States may provide that it could, for example, be sufficient for the court to consider on the balance of probabilities, or to reasonably presume that it is substantially more probable, that the property in question has been obtained from criminal conduct than from other activities. In this context, the court has to consider the specific circumstances of the case, including the facts and available evidence based on which a decision on extended confiscation could be issued. The fact that the property of the person is disproportionate to his lawful income could be among those facts giving rise to a conclusion of the court that the property derives from criminal conduct. Member States could also determine a requirement for a certain period of time during which the property could be deemed to have originated from criminal conduct.

(22)

This Directive lays down minimum rules. It does not prevent Member States from providing more extensive powers in their national law, including, for example, in relation to their rules on evidence.

(23)

This Directive applies to criminal offences which fall within the scope of the instruments listed herein. Within the scope of those instruments, Member States should apply extended confiscation at least to certain criminal offences as defined in this Directive.

(24)

The practice by a suspected or accused person of transferring property to a knowing third party with a view to avoiding confiscation is common and increasingly widespread. The current Union legal framework does not contain binding rules on the confiscation of property transferred to third parties. It is therefore becoming increasingly necessary to allow for the confiscation of property transferred to or acquired by third parties. Acquisition by a third party refers to situations where, for example, property has been acquired, directly or indirectly, for example through an intermediary, by the third party from a suspected or accused person, including when the criminal offence has been committed on their behalf or for their benefit, and when an accused person does not have property that can be confiscated. Such confiscation should be possible at least in cases where third parties knew or ought to have known that the purpose of the transfer or acquisition was to avoid confiscation, on the basis of concrete facts and circumstances, including that the transfer was carried out free of charge or in exchange for an amount significantly lower than the market value. The rules on third party confiscation should extend to both natural and legal persons. In any event the rights of bona fide third parties should not be prejudiced.

(25)

Member States are free to define third party confiscation as subsidiary or alternative to direct confiscation, as appropriate in accordance with national law.

(26)

Confiscation leads to the final deprivation of property. However, preservation of property can be a prerequisite to confiscation and can be of importance for the enforcement of a confiscation order. Property is preserved by means of freezing. In order to prevent the dissipation of property before a freezing order can be issued, the competent authorities in the Member States should be empowered to take immediate action in order to secure such property.

(27)

Since property is often preserved for the purposes of confiscation, freezing and confiscation are closely linked. In some legal systems freezing for the purposes of confiscation is regarded as a separate procedural measure of a provisional nature, which may be followed by a confiscation order. Without prejudice to different national legal systems and to Framework Decision 2003/577/JHA, this Directive should approximate some aspects of the national systems of freezing for the purposes of confiscation.

(28)

Freezing measures are without prejudice to the possibility for a specific property to be considered evidence throughout the proceedings, provided that it would ultimately be made available for effective execution of the confiscation order.

(29)

In the context of criminal proceedings, property may also be frozen with a view to its possible subsequent restitution or in order to safeguard compensation for the damage caused by a criminal offence.

(30)

Suspected or accused persons often hide property throughout the entire duration of criminal proceedings. As a result confiscation orders cannot be executed, leaving those subject to confiscation orders to benefit from their property once they have served their sentences. It is therefore necessary to enable the determination of the precise extent of the property to be confiscated even after a final conviction for a criminal offence, in order to permit the full execution of confiscation orders when no property or insufficient property was initially identified and the confiscation order remains unexecuted.

(31)

Given the limitation of the right to property by freezing orders, such provisional measures should not be maintained longer than necessary to preserve the availability of the property with a view to possible subsequent confiscation. This may require a review by the court in order to ensure that the purpose of preventing the dissipation of property remains valid.

(32)

Property frozen with a view to possible subsequent confiscation should be managed adequately in order not to lose its economic value. Member States should take the necessary measures, including the possibility of selling or transferring the property to minimise such losses. Member States should take relevant measures, for example the establishment of national centralised Asset Management Offices, a set of specialised offices or equivalent mechanisms, in order to effectively manage the assets frozen before confiscation and preserve their value, pending judicial determination.

(33)

This Directive substantially affects the rights of persons, not only of suspected or accused persons, but also of third parties who are not being prosecuted. It is therefore necessary to provide for specific safeguards and judicial remedies in order to guarantee the preservation of their fundamental rights in the implementation of this Directive. This includes the right to be heard for third parties who claim that they are the owner of the property concerned, or who claim that they have other property rights (‘real rights’, ‘ius in re’), such as the right of usufruct. The freezing order should be communicated to the affected person as soon as possible after its execution. Nevertheless, the competent authorities may postpone communicating such orders to the affected person due to the needs of the investigation.

(34)

The purpose of communicating the freezing order is, inter alia, to allow the affected person to challenge the order. Therefore, such communication should indicate, at least briefly, the reason or reasons for the order concerned, it being understood that such indication can be very succinct.

(35)

Member States should consider taking measures allowing confiscated property to be used for public interest or social purposes. Such measures could, inter alia, comprise earmarking property for law enforcement and crime prevention projects, as well as for other projects of public interest and social utility. That obligation to consider taking measures entails a procedural obligation for Member States, such as conducting a legal analysis or discussing the advantages and disadvantages of introducing measures. When managing frozen property and when taking measures concerning the use of confiscated property, Member States should take appropriate action to prevent criminal or illegal infiltration.

(36)

Reliable data sources on the freezing and confiscation of the proceeds of crime are scarce. In order to allow for the evaluation of this Directive, it is necessary to collect a comparable minimum set of appropriate statistical data on freezing and confiscation of property, asset tracing, judicial and asset disposal activities.

(37)

Member States should endeavour to collect data for certain statistics at a central level, with a view to sending them to the Commission. This means that the Member States should make reasonable efforts to collect the data concerned. It does not mean, however, that the Member States are under an obligation to achieve the result of collecting the data where there is a disproportionate administrative burden or when there are high costs for the Member State concerned.

(38)

This Directive respects the fundamental rights and observes the principles recognised by the Charter of Fundamental Rights of the European Union (‘the Charter’) and the European Convention for the Protection of Human Rights and Fundamental Freedoms (‘the ECHR’), as interpreted in the case-law of the European Court of Human Rights. This Directive should be implemented in accordance with those rights and principles. This Directive should be without prejudice to national law in relation to legal aid and does not create any obligations for Member States’ legal aid systems, which should apply in accordance with the Charter and the ECHR.

(39)

Specific safeguards should be put in place, so as to ensure that as a general rule reasons are given for confiscation orders, unless when, in simplified criminal proceedings in minor cases, the affected person has waived his or her right to be given reasons.

(40)

This Directive should be implemented taking account of the provisions of Directive 2010/64/EU of the European Parliament and of the Council (9), Directive 2012/13/EU of the European Parliament and of the Council (10) and Directive 2013/48/EU of the European Parliament and of the Council (11) which concern procedural rights in criminal proceedings.

(41)

Since the objective of this Directive, namely facilitating confiscation of property in criminal matters, cannot be sufficiently achieved by the Member States but can rather be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union (TEU). In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve that objective.

(42)

In accordance with Articles 3 and 4a(1) of Protocol (No 21) on the position of the United Kingdom and Ireland in respect of the Area of Freedom, Security and Justice, annexed to the TEU and to the Treaty on the Functioning of the European Union (TFEU), Ireland has notified its wish to take part in the adoption and application of this Directive. In accordance with that Protocol, Ireland is to be bound by this Directive only in respect of the offences covered by the instruments by which it is bound.

(43)

In accordance with Articles 1, 2 and 4a(1) of Protocol (No 21) on the position of the United Kingdom and Ireland in respect of the Area of Freedom, Security and Justice, annexed to the TEU and to the TFEU, and without prejudice to Article 4 of that Protocol, the United Kingdom is not taking part in the adoption of this Directive and is not bound by it or subject to its application. Subject to its participation in accordance with Article 4 of that Protocol, the United Kingdom is to be bound by this Directive only in respect of the offences covered by the instruments by which it is bound.

(44)

In accordance with Articles 1 and 2 of Protocol (No 22) on the position of Denmark annexed to the TEU and to the TFEU, Denmark is not taking part in the adoption of this Directive and is not bound by it or subject to its application,

HAVE ADOPTED THIS DIRECTIVE:

Article 1

Subject matter

1.   This Directive establishes minimum rules on the freezing of property with a view to possible subsequent confiscation and on the confiscation of property in criminal matters.

2.   This Directive is without prejudice to the procedures that Member States may use to confiscate the property in question.

Article 2

Definitions

For the purpose of this Directive, the following definitions apply:

(1)

‘proceeds’ means any economic advantage derived directly or indirectly from a criminal offence; it may consist of any form of property and includes any subsequent reinvestment or transformation of direct proceeds and any valuable benefits;

(2)

‘property’ means property of any description, whether corporeal or incorporeal, movable or immovable, and legal documents or instruments evidencing title or interest in such property;

(3)

‘instrumentalities’ means any property used or intended to be used, in any manner, wholly or in part, to commit a criminal offence or criminal offences;

(4)

‘confiscation’ means a final deprivation of property ordered by a court in relation to a criminal offence;

(5)

‘freezing’ means the temporary prohibition of the transfer, destruction, conversion, disposal or movement of property or temporarily assuming custody or control of property;

(6)

‘criminal offence’ means an offence covered by any of the instruments listed in Article 3.

Article 3

Scope

This Directive shall apply to criminal offences covered by:

(a)

Convention drawn up on the basis of Article K.3(2)(c) of the Treaty on European Union on the fight against corruption involving officials of the European Communities or officials of the Member States of the European Union (12) (‘Convention on the fight against corruption involving officials’);

(b)

Council Framework Decision 2000/383/JHA of 29 May 2000 on increasing protection by criminal penalties and other sanctions against counterfeiting in connection with the introduction of the euro (13);

(c)

Council Framework Decision 2001/413/JHA of 28 May 2001 on combating fraud and counterfeiting on non-cash means of payment (14);

(d)

Council Framework Decision 2001/500/JHA of 26 June 2001 on money laundering, the identification, tracing, freezing, seizing and confiscation of instrumentalities and the proceeds of crime (15);

(e)

Council Framework Decision 2002/475/JHA of 13 June 2002 on combating terrorism (16);

(f)

Council Framework Decision 2003/568/JHA of 22 July 2003 on combating corruption in the private sector (17);

(g)

Council Framework Decision 2004/757/JHA of 25 October 2004 laying down minimum provisions on the constituent elements of criminal acts and penalties in the field of illicit drug trafficking (18);

(h)

Council Framework Decision 2008/841/JHA of 24 October 2008 on the fight against organised crime (19);

(i)

Directive 2011/36/EU of the European Parliament and of the Council of 5 April 2011 on preventing and combating trafficking in human beings and protecting its victims, and replacing Council Framework Decision 2002/629/JHA (20);

(j)

Directive 2011/93/EU of the European Parliament and of the Council of 13 December 2011 on combating the sexual abuse and sexual exploitation of children and child pornography, and replacing Council Framework Decision 2004/68/JHA (21);

(k)

Directive 2013/40/EU of the European Parliament and of the Council of 12 August 2013 on attacks against information systems and replacing Council Framework Decision 2005/222/JHA (22),

as well as other legal instruments if those instruments provide specifically that this Directive applies to the criminal offences harmonised therein.

Article 4

Confiscation

1.   Member States shall take the necessary measures to enable the confiscation, either in whole or in part, of instrumentalities and proceeds or property the value of which corresponds to such instrumentalities or proceeds, subject to a final conviction for a criminal offence, which may also result from proceedings in absentia.

2.   Where confiscation on the basis of paragraph 1 is not possible, at least where such impossibility is the result of illness or absconding of the suspected or accused person, Member States shall take the necessary measures to enable the confiscation of instrumentalities and proceeds in cases where criminal proceedings have been initiated regarding a criminal offence which is liable to give rise, directly or indirectly, to economic benefit, and such proceedings could have led to a criminal conviction if the suspected or accused person had been able to stand trial.

Article 5

Extended confiscation

1.   Member States shall adopt the necessary measures to enable the confiscation, either in whole or in part, of property belonging to a person convicted of a criminal offence which is liable to give rise, directly or indirectly, to economic benefit, where a court, on the basis of the circumstances of the case, including the specific facts and available evidence, such as that the value of the property is disproportionate to the lawful income of the convicted person, is satisfied that the property in question is derived from criminal conduct.

2.   For the purpose of paragraph 1 of this Article, the notion of ‘criminal offence’ shall include at least the following:

(a)

active and passive corruption in the private sector, as provided for in Article 2 of Framework Decision 2003/568/JHA, as well as active and passive corruption involving officials of institutions of the Union or of the Member States, as provided for in Articles 2 and 3 respectively of the Convention on the fight against corruption involving officials;

(b)

offences relating to participation in a criminal organisation, as provided for in Article 2 of Framework Decision 2008/841/JHA, at least in cases where the offence has led to economic benefit;

(c)

causing or recruiting a child to participate in pornographic performances, or profiting from or otherwise exploiting a child for such purposes if the child is over the age of sexual consent, as provided for in Article 4(2) of Directive 2011/93/EU; distribution, dissemination or transmission of child pornography, as provided for in Article 5(4) of that Directive; offering, supplying or making available child pornography, as provided for in Article 5(5) of that Directive; production of child pornography, as provided for in Article 5(6) of that Directive;

(d)

illegal system interference and illegal data interference, as provided for in Articles 4 and 5 respectively of Directive 2013/40/EU, where a significant number of information systems have been affected through the use of a tool, as provided for in Article 7 of that Directive, designed or adapted primarily for that purpose; the intentional production, sale, procurement for use, import, distribution or otherwise making available of tools used for committing offences, at least for cases which are not minor, as provided for in Article 7 of that Directive;

(e)

a criminal offence that is punishable, in accordance with the relevant instrument in Article 3 or, in the event that the instrument in question does not contain a penalty threshold, in accordance with the relevant national law, by a custodial sentence of a maximum of at least four years.

Article 6

Confiscation from a third party

1.   Member States shall take the necessary measures to enable the confiscation of proceeds, or other property the value of which corresponds to proceeds, which, directly or indirectly, were transferred by a suspected or accused person to third parties, or which were acquired by third parties from a suspected or accused person, at least if those third parties knew or ought to have known that the purpose of the transfer or acquisition was to avoid confiscation, on the basis of concrete facts and circumstances, including that the transfer or acquisition was carried out free of charge or in exchange for an amount significantly lower than the market value.

2.   Paragraph 1 shall not prejudice the rights of bona fide third parties.

Article 7

Freezing

1.   Member States shall take the necessary measures to enable the freezing of property with a view to possible subsequent confiscation. Those measures, which shall be ordered by a competent authority, shall include urgent action to be taken when necessary in order to preserve property.

2.   Property in the possession of a third party, as referred to under Article 6, can be subject to freezing measures for the purposes of possible subsequent confiscation.

Article 8

Safeguards

1.   Member States shall take the necessary measures to ensure that the persons affected by the measures provided for under this Directive have the right to an effective remedy and a fair trial in order to uphold their rights.

2.   Member States shall take the necessary measures to ensure that the freezing order is communicated to the affected person as soon as possible after its execution. Such communication shall indicate, at least briefly, the reason or reasons for the order concerned. When it is necessary to avoid jeopardising a criminal investigation, the competent authorities may postpone communicating the freezing order to the affected person.

3.   The freezing order shall remain in force only for as long as it is necessary to preserve the property with a view to possible subsequent confiscation.

4.   Member States shall provide for the effective possibility for the person whose property is affected to challenge the freezing order before a court, in accordance with procedures provided for in national law. Such procedures may provide that when the initial freezing order has been taken by a competent authority other than a judicial authority, such order shall first be submitted for validation or review to a judicial authority before it can be challenged before a court.

5.   Frozen property which is not subsequently confiscated shall be returned immediately. The conditions or procedural rules under which such property is returned shall be determined by national law.

6.   Member States shall take the necessary measures to ensure that reasons are given for any confiscation order and that the order is communicated to the person affected. Member States shall provide for the effective possibility for a person in respect of whom confiscation is ordered to challenge the order before a court.

7.   Without prejudice to Directive 2012/13/EU and Directive 2013/48/EU, persons whose property is affected by a confiscation order shall have the right of access to a lawyer throughout the confiscation proceedings relating to the determination of the proceeds and instrumentalities in order to uphold their rights. The persons concerned shall be informed of that right.

8.   In proceedings referred to in Article 5, the affected person shall have an effective possibility to challenge the circumstances of the case, including specific facts and available evidence on the basis of which the property concerned is considered to be property that is derived from criminal conduct.

9.   Third parties shall be entitled to claim title of ownership or other property rights, including in the cases referred to in Article 6.

10.   Where, as a result of a criminal offence, victims have claims against the person who is subject to a confiscation measure provided for under this Directive, Member States shall take the necessary measures to ensure that the confiscation measure does not prevent those victims from seeking compensation for their claims.

Article 9

Effective confiscation and execution

Member States shall take the necessary measures to enable the detection and tracing of property to be frozen and confiscated even after a final conviction for a criminal offence or following proceedings in application of Article 4(2) and to ensure the effective execution of a confiscation order, if such an order has already been issued.

Article 10

Management of frozen and confiscated property

1.   Member States shall take the necessary measures, for example by establishing centralised offices, a set of specialised offices or equivalent mechanisms, to ensure the adequate management of property frozen with a view to possible subsequent confiscation.

2.   Member States shall ensure that the measures referred to in paragraph 1 include the possibility to sell or transfer property where necessary.

3.   Member States shall consider taking measures allowing confiscated property to be used for public interest or social purposes.

Article 11

Statistics

1.   Member States shall regularly collect and maintain comprehensive statistics from the relevant authorities. The statistics collected shall be sent to the Commission each year and shall include:

(a)

the number of freezing orders executed;

(b)

the number of confiscation orders executed;

(c)

the estimated value of property frozen, at least of property frozen with a view to possible subsequent confiscation at the time of freezing;

(d)

the estimated value of property recovered at the time of confiscation.

2.   Member States shall also send each year the following statistics to the Commission, if they are available at a central level in the Member State concerned:

(a)

the number of requests for freezing orders to be executed in another Member State;

(b)

the number of requests for confiscation orders to be executed in another Member State;

(c)

the value or estimated value of the property recovered following execution in another Member State.

3.   Member States shall endeavour to collect data referred to in paragraph 2 at a central level.

Article 12

Transposition

1.   Member States shall bring into force the laws, regulations and administrative provisions necessary to comply with this Directive by 4 October 2015. They shall forthwith transmit to the Commission the text of those provisions.

2.   When Member States adopt those provisions, they shall contain a reference to this Directive or be accompanied by such a reference on the occasion of their official publication. The methods of making such reference shall be laid down by Member States.

3.   Member States shall communicate to the Commission the text of the main provisions of national law which they adopt in the field covered by this Directive.

Article 13

Reporting

The Commission shall, by 4 October 2018 submit a report to the European Parliament and the Council, assessing the impact of existing national law on confiscation and asset recovery, accompanied, if necessary, by adequate proposals.

In that report, the Commission shall also assess whether there is any need to revise the list of offences in Article 5(2).

Article 14

Replacement of Joint Action 98/699/JHA and of certain provisions of Framework Decisions 2001/500/JHA and 2005/212/JHA

1.   Joint Action 98/699/JHA, point (a) of Article 1 and Articles 3 and 4 of Framework Decision 2001/500/JHA, and the first four indents of Article 1 and Article 3 of Framework Decision 2005/212/JHA, are replaced by this Directive for the Member States bound by this Directive, without prejudice to the obligations of those Member States relating to the time limits for transposition of those Framework Decisions into national law.

2.   For the Member States bound by this Directive, references to Joint Action 98/699/JHA and to the provisions of Framework Decisions 2001/500/JHA and 2005/212/JHA referred to in paragraph 1 shall be construed as references to this Directive.

Article 15

Entry into force

This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

Article 16

Addressees

This Directive is addressed to Member States in accordance with the Treaties.

Done at Brussels, 3 April 2014.

For the European Parliament

The President

M. SCHULZ

For the Council

The President

D. KOURKOULAS


(1)  OJ C 299, 4.10.2012, p. 128.

(2)  OJ C 391, 18.12.2012, p. 134.

(3)  Position of the European Parliament of 25 February 2014 (not yet published in the Official Journal) and Council decision of 14 March 2014.

(4)  Joint Action 98/699/JHA of 3 December 1998 adopted by the Council on the basis of Article K.3 of the Treaty on European Union, on money laundering, the identification, tracing, freezing, seizing and confiscation of instrumentalities and the proceeds from crime (OJ L 333, 9.12.1998, p. 1).

(5)  Council Framework Decision 2001/500/JHA of 26 June 2001 on money laundering, the identification, tracing, freezing, seizing and confiscation of instrumentalities and the proceeds of crime (OJ L 182, 5.7.2001, p. 1).

(6)  Council Framework Decision 2003/577/JHA of 22 July 2003 on the execution in the European Union of orders freezing property or evidence (OJ L 196, 2.8.2003, p. 45).

(7)  Council Framework Decision 2005/212/JHA of 24 February 2005 on confiscation of crime-related proceeds, instrumentalities and property (OJ L 68, 15.3.2005, p. 49).

(8)  Council Framework Decision 2006/783/JHA of 6 October 2006 on the application of the principle of mutual recognition to confiscation orders (OJ L 328, 24.11.2006, p. 59).

(9)  Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on the right to interpretation and translation in criminal proceedings (OJ L 280, 26.10.2010, p. 1).

(10)  Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the right to information in criminal proceedings (OJ L 142, 1.6.2012, p. 1).

(11)  Directive 2013/48/EU of the European Parliament and of the Council of 22 October 2013 on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty (OJ L 294, 6.11.2013, p. 1).

(12)  OJ C 195, 25.6.1997, p. 1.

(13)  OJ L 140, 14.6.2000, p. 1.

(14)  OJ L 149, 2.6.2001, p. 1.

(15)  OJ L 182, 5.7.2001, p. 1.

(16)  OJ L 164, 22.6.2002, p. 3.

(17)  OJ L 192, 31.7.2003, p. 54.

(18)  OJ L 335, 11.11.2004, p. 8.

(19)  OJ L 300, 11.11.2008, p. 42.

(20)  OJ L 101, 15.4.2011, p. 1.

(21)  OJ L 335, 17.12.2011, p. 1.

(22)  OJ L 218, 14.8.2013, p. 8.


29.4.2014   

EN

Official Journal of the European Union

L 127/51


DIRECTIVE 2014/45/EU OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

of 3 April 2014

on periodic roadworthiness tests for motor vehicles and their trailers and repealing Directive 2009/40/EC

(Text with EEA relevance)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the Functioning of the European Union, and in particular Article 91 thereof,

Having regard to the proposal from the European Commission,

After transmission of the draft legislative act to the national parliaments,

Having regard to the opinion of the European Economic and Social Committee (1),

After consulting the Committee of the Regions,

Acting in accordance with the ordinary legislative procedure (2),

Whereas:

(1)

In its White Paper of 28 March 2011 entitled ‘Roadmap to a Single European Transport Area – Towards a competitive and resource efficient transport system’, the Commission set out a ‘zero-vision’ objective whereby the Union should move close to zero fatalities in road transport by 2050. With a view to attaining that objective, vehicle technology is expected to contribute greatly to improvement of the safety record of road transport.

(2)

In its Communication entitled ‘Towards a European road safety area: policy orientations on road safety 2011-2020’, the Commission proposed a further halving of the overall number of road fatalities in the Union by 2020, starting from 2010. With a view to attaining that goal, the Commission set out seven strategic objectives, and identified actions for safer vehicles, a strategy to reduce the number of injuries and measures to improve the safety of vulnerable road users, in particular motorcyclists.

(3)

Roadworthiness testing is a part of a wider regime designed to ensure that vehicles are kept in a safe and environmentally acceptable condition during their use. That regime should cover periodic roadworthiness testing of vehicles and technical roadside inspection of vehicles used for commercial road transport activities, as well as providing for a vehicle registration procedure allowing for the suspension of a vehicle’s authorisation to be used in road traffic where the vehicle constitutes an immediate risk to road safety. Periodic testing should be the main tool to ensure roadworthiness. Technical roadside inspections of commercial vehicles should merely be complementary to periodic testing.

(4)

Member States should be allowed to set higher test standards than those required by this Directive.

(5)

Enforcement of roadworthiness measures may include awareness campaigns focusing on vehicle owners and aimed at developing good practices and habits resulting from basic checks on their vehicles.

(6)

Vehicles with malfunctioning technical systems have an impact on road safety and may contribute to road crashes involving injuries or fatalities. That impact could be reduced if adequate improvements to the roadworthiness testing system were put in place. Early disclosure of a deficiency in the roadworthiness of a vehicle would help to remedy that deficiency and hence prevent accidents.

(7)

Vehicles with malfunctioning emission control systems have a greater impact on the environment than properly maintained vehicles. Therefore, a periodic regime of roadworthiness tests would contribute to improving the environment by reducing average vehicle emissions.

(8)

Member States should consider appropriate measures to prevent adverse manipulation of, or tampering with, vehicle parts and components that could have a negative bearing on required safety and environmental characteristics of the vehicle, in particular through the periodic roadworthiness test, including effective, proportionate, dissuasive and non-discriminatory penalties.

(9)

During the last two decades, requirements in respect of vehicle emissions for type-approval have been continuously strengthened. However, air quality has not improved as much as predicted with the tightening of emission standards for vehicles, especially in respect of nitrogen oxides (NOx) and fine particulate matter. Possibilities for improving test cycles to match on-road conditions should be closely examined in order to develop future solutions, including the establishment of test methods for the measurement of NOx levels and of limit values for NOx emissions.

(10)

For vehicles complying with emission classes Euro 6 and Euro VI, on-board diagnostics systems (OBD) are becoming more effective in assessing emissions, justifying their use as an equivalent to standard emission testing for the purpose of roadworthiness tests. With a view to providing for the use of OBD in roadworthiness tests for vehicles up to emission classes Euro 5 and Euro V, Member States should be able to allow this testing method in accordance with the manufacturer’s recommendations and other requirements for such vehicles where the equivalence, taking into account any relevant type-approval legislation, where appropriate, has been independently verified.

(11)

A number of technical standards and requirements in respect of vehicle safety have been adopted in the Union. It is necessary to ensure, through a regime of periodic roadworthiness tests, that vehicles continue to meet safety standards. That regime should apply to certain categories of vehicles as defined in Directives 2002/24/EC (3), 2003/37/EC (4) and 2007/46/EC of the European Parliament and of the Council (5).

(12)

Wheeled tractors with a maximum design speed exceeding 40 km/h are increasingly used to replace trucks in local transport activities and for commercial road haulage purposes. Their risk potential is comparable to that of trucks, and vehicles in that category, which are used mainly on public roads, should therefore be subject to roadworthiness testing.

(13)

Vehicles of historical interest are supposed to conserve the heritage of the period during which they were constructed, and are considered to be hardly used on public roads. It should be left to Member States to determine the periodicity of roadworthiness testing for such vehicles. It should also be for Member States to regulate roadworthiness testing for other types of specialised vehicles.

(14)

Vehicles used exclusively on remote territories of Member States, in particular on small islands with fewer than 5 000 inhabitants or in sparsely populated areas with a population density below five persons per square kilometre, are used under conditions that may require a specific roadworthiness testing regime. Member States should therefore be empowered to exempt such vehicles from the application of this Directive.

(15)

Roadworthiness testing is a sovereign activity and should therefore be carried out by the Member States or by public or private bodies entrusted to carry out such testing under their supervision. Member States should invariably remain responsible for roadworthiness testing, even where the national system allows for private bodies, including those which also perform vehicle repairs, to carry out roadworthiness testing.

(16)

Member States should be empowered to designate testing centres located outside their territory to carry out roadworthiness tests for vehicles registered in their territory, if those testing centres have already been authorised to carry out tests on vehicles by the Member State in which they are located.

(17)

For the inspection of vehicles, and especially for their electronic safety components, it is crucial to have access to the technical specifications of each individual vehicle. Consequently, vehicle manufacturers should provide the data needed for verification of the functionality of safety and environment-related components. The provisions concerning access to repair and maintenance information should likewise be applied for that purpose, allowing inspection centres to have access to all information necessary for roadworthiness testing. The data should include the details that allow the functionality of the vehicle safety systems to be monitored in a way that allows such systems to be tested in a periodic technical inspection environment. This is of crucial importance, especially in the field of electronically controlled systems, and should cover all elements that have been installed by the manufacturer.

(18)

Vehicles used on public roads are required to be roadworthy when they are used. The holder of the registration certificate and, where applicable, the operator of the vehicle should be responsible for keeping the vehicle in a roadworthy condition.

(19)

It is important for road safety and for its impact on society that vehicles used on roads should be in a proper technical condition. Therefore, Member States should not be prevented from allowing, on a voluntary basis, additional roadworthiness tests.

(20)

To allow for a degree of flexibility for holders of a registration certificate and operators, Member States should be able to specify a period of several weeks in which the periodic roadworthiness test is to be performed.

(21)

Testing during the life cycle of a vehicle should be relatively simple, quick and inexpensive, while at the same time effective in achieving the objectives of this Directive.

(22)

Roadworthiness tests should cover all items relevant to the specific design, construction and equipment of the tested vehicle. Compatibility between parts and components, such as between wheels and wheel hubs, should be treated as a critical safety item and should be checked during roadworthiness testing. In the context of those items, and considering the current state of vehicle technology, modern electronic systems should be included in the list of items to be tested. With a view to harmonising roadworthiness testing, recommended testing methods should be established for each of the test items. Those items should be updated to take account of evolving research and technical progress in the field of vehicle safety.

(23)

In order to facilitate harmonisation and to ensure consistency of standards, a non-exhaustive list of the main reasons for failure should be provided in respect of all test items. To achieve consistency in the judgement of the condition of the tested vehicle, detected failures should be assessed to a common standard.

(24)

With a view to better applying the principle of freedom of movement within the Union, for the purpose of re-registration of a vehicle, Member States should recognise roadworthiness certificates issued by other Member States. This should not affect the right of a Member State to verify the roadworthiness certificate and the vehicle identification during re-registration and to require a new roadworthiness test to be carried out under the conditions laid down in this Directive.

(25)

Odometer fraud should be regarded as an offence liable to a penalty, because manipulation of an odometer may lead to an incorrect evaluation of the roadworthiness of a vehicle. The recording of mileage in the roadworthiness certificate and access for inspectors to that information should facilitate the detection of odometer tampering or manipulation. The exchange of information on odometer readings between the competent authorities of Member States should be examined by the Commission.

(26)

A roadworthiness certificate should be issued after each test. This should include, inter alia, information concerning the identity of the vehicle and the results of the test. The test results should be made available electronically. With a view to ensuring a proper follow-up of roadworthiness tests, Member States should collect and retain such information in a database, in particular for the purposes of analysis of the results of the periodic roadworthiness tests.

(27)

The holder of the registration certificate and, where applicable, the operator of a vehicle subject to a roadworthiness test during which deficiencies are found, in particular those which represent a risk to road safety, should rectify such deficiencies without delay. In the case of dangerous deficiencies, it may be necessary to restrict the use of the vehicle until those deficiencies are fully rectified.

(28)

Where a tested vehicle belongs to a vehicle category which is not subject to registration in the Member State where it has been put into service, that Member State should be allowed to require that the proof of test be displayed in a visible manner on the vehicle.

(29)

In order to achieve a high quality of testing throughout the Union, test equipment to be used during testing, its maintenance and its calibration should be verified with reference to specifications provided by the Member States or by manufacturers.

(30)

It should be possible for alternative equipment reflecting technological progress and innovation to be used, provided that an equivalent high-quality level of testing is ensured.

(31)

When authorising testing centres on their territory, Member States should take into account the fact that Directive 2006/123/EC of the European Parliament and of the Council (6) excludes from its scope services of general interest in the field of transport.

(32)

Testing centres should ensure the objectivity and the high quality of the vehicle testing. Therefore, in order to meet minimum requirements in terms of quality management, testing centres should comply with the requirements laid down by the authorising Member State.

(33)

High standards of roadworthiness testing require that testing personnel have a high level of skills and competences. A training system including initial training and periodic refreshers or an appropriate examination should be introduced. Provision should be made for a transitional period to allow for a smooth transition of existing testing personnel into the periodic training or examination regime. In order to ensure high standards of training, competence and testing, Member States should be allowed to lay down additional competence and corresponding training requirements.

(34)

Inspectors, when carrying out roadworthiness tests, should act independently and their judgement should not be affected by conflicts of interest, including those of an economic or personal nature. There should therefore be no direct correlation between the reward of inspectors and the results of roadworthiness tests. It should be possible for Member States to prescribe requirements regarding the separation of activities or to authorise a private body to carry out both roadworthiness tests and vehicle repairs, even on the same vehicle in cases where the supervising body has established to its satisfaction that a high level of objectivity is maintained.

(35)

The results of a roadworthiness test should not be altered for commercial purposes. Only if the findings of a roadworthiness test performed by an inspector are manifestly incorrect should the supervising body be able to modify the results of that test.

(36)

With a view to ensuring that a high quality of testing is maintained over time, Member States should set up a quality assurance system that covers the processes of authorisation, supervision, withdrawal, suspension or cancellation of authorisation to carry out roadworthiness tests.

(37)

Accreditation of testing centres under Regulation (EC) No 765/2008 of the European Parliament and of the Council (7) should not constitute an obligation for the Member States.

(38)

In several Member States, a high number of private authorised testing centres carry out roadworthiness tests. In order to ensure the efficient exchange of information between Member States in this regard, national contact points should be designated.

(39)

Roadworthiness testing forms part of a wider regulatory scheme, governing vehicles throughout their lifetime from approval via registrations and inspections until scrapping. Sharing of the information contained in national and manufacturers’ electronic vehicle databases should in principle help to improve the efficiency of the entire chain of vehicle administration and should help to reduce costs and administrative burdens. The Commission should examine the feasibility, costs and benefits of establishing an electronic vehicle information platform by taking advantage of existing and already implemented IT solutions with regard to international data exchange, so as to minimise costs and avoid duplication. In carrying out its examination of this issue, the Commission should consider the most appropriate way to link the existing national systems with a view to exchanges of information on data relating to roadworthiness testing and odometer readings between the competent authorities of Member States responsible for testing, registration and vehicle approval, testing centres, test equipment manufacturers and vehicle manufacturers. The Commission should also examine the feasibility, costs and benefits of collection and storage of available information concerning the main safety-related components of vehicles which have been involved in serious accidents as well as the possibility of making information on accident history and odometer readings available in anonymised form to vehicle inspectors, holders of registration certificates and accident researchers.

(40)

In order to ensure uniform conditions for the implementation of this Directive, implementing powers should be conferred on the Commission. Those powers should be exercised in accordance with Regulation (EU) No 182/2011 of the European Parliament and of the Council (8).

(41)

The Commission should not adopt implementing acts relating to the information to be made accessible by vehicle manufacturers for roadworthiness testing where the committee established pursuant to this Directive delivers no opinion on the draft implementing act presented by the Commission.

(42)

In order to update the vehicle category designations in Article 2(1) and Article 5(1) and (2), to update point 3 of Annex I in respect of methods, and to adapt point 3 of Annex I, in respect of the list of test items, methods and assessment of deficiencies, the power to adopt acts in accordance with Article 290 of the Treaty on the Functioning of the European Union should be delegated to the Commission. It is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level. The Commission, when preparing and drawing up delegated acts, should ensure a simultaneous, timely and appropriate transmission of relevant documents to the European Parliament and to the Council.

(43)

Roadworthiness has a direct impact on road safety and should therefore be reviewed periodically. The Commission should report on the effectiveness of the provisions of this Directive, including those relating to its scope, the frequency of testing, further enhancement of the roadworthiness system through electronic information exchange and the potential in the future for mutual recognition of roadworthiness certificates.

(44)

Testing facilities and equipment used in testing centres should fulfil the requirements set out for carrying out roadworthiness tests. Since this necessitates substantial investment and adaptations which it may not be possible to carry out immediately, a period of five years should be granted to comply with those requirements. A period of five years should likewise be granted to enable supervisory bodies to fulfil all the criteria and requirements concerning the authorisation and supervision of testing centres.

(45)

Since the objective of this Directive, namely to improve road safety by laying down minimum common requirements and harmonised rules concerning roadworthiness tests of vehicles within the Union, cannot be sufficiently achieved by the Member States but can rather, by reason of the scale of the action, be better achieved at Union level, the Union may adopt measures, in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality, as set out in that Article, this Directive does not go beyond what is necessary in order to achieve that objective.

(46)

This Directive respects fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union as referred to in Article 6 of the Treaty on European Union.

(47)

This Directive integrates and updates the rules contained in Commission Recommendation 2010/378/EU (9) with a view to better regulating roadworthiness testing outcomes.

(48)

This Directive updates the technical requirements laid down in Directive 2009/40/EC of the European Parliament and of the Council (10) and enlarges its scope in order to include, in particular, provisions concerning the setting-up of testing centres and of their supervisory bodies as well as the designation of inspectors entrusted to carry out roadworthiness tests. Therefore, that Directive should be repealed,

HAVE ADOPTED THIS DIRECTIVE:

CHAPTER I

SUBJECT MATTER, DEFINITIONS AND SCOPE

Article 1

Subject matter

This Directive establishes minimum requirements for a regime of periodic roadworthiness tests of vehicles used on public roads.

Article 2

Scope

1.   This Directive shall apply to vehicles with a design speed exceeding 25 km/h of the following categories, as referred to in Directive 2002/24/EC, Directive 2003/37/EC and Directive 2007/46/EC:

motor vehicles designed and constructed primarily for the carriage of persons and their luggage comprising not more than eight seating positions in addition to the driver’s seating position – vehicle category M1;

motor vehicles designed and constructed primarily for the carriage of persons and their luggage comprising more than eight seating positions in addition to the driver’s seating position – vehicle categories M2 and M3;

motor vehicles designed and constructed primarily for the carriage of goods, having a maximum mass not exceeding 3,5 tonnes – vehicle category N1;

motor vehicles designed and constructed primarily for the carriage of goods, having a maximum mass exceeding 3,5 tonnes – vehicle categories N2 and N3;

trailers designed and constructed for the carriage of goods or persons, as well as for the accommodation of persons, having a maximum mass exceeding 3,5 tonnes – vehicle categories O3 and O4;

from 1 January 2022, two- or three-wheel vehicles – vehicle categories L3e, L4e, L5e and L7e, with an engine displacement of more than 125 cm3;

wheeled tractors of category T5, the use of which mainly takes place on public roads with a maximum design speed exceeding 40 km/h.

2.   Member States may exclude the following vehicles registered in their territory from the scope of application of this Directive:

vehicles operated or used in exceptional conditions and vehicles which are never, or hardly ever, used on public roads, such as vehicles of historical interest or competition vehicles;

vehicles covered by diplomatic immunity;

vehicles used by armed forces, forces responsible for law and order, fire services, civil protection service and emergency or rescue services;

vehicles used for agricultural, horticultural, forestry, farming or fishery purposes only on the territory of the Member State concerned and mainly on the terrain where such activity takes place, including agricultural roads, forestry roads or agricultural fields;

vehicles used exclusively in small islands or sparsely populated areas;

specialised vehicles transporting circus and funfair equipment, with a maximum design speed not exceeding 40 km/h, and only operating on the territory of the Member State concerned;

vehicles in categories L3e, L4e, L5e and L7e, with an engine displacement of more than 125 cm3, where the Member State has put in place effective alternative road safety measures for two- or three-wheel vehicles, taking into account in particular relevant road safety statistics covering the last five years. Member States shall notify such exemptions to the Commission.

3.   Member States may introduce national requirements concerning roadworthiness tests for vehicles registered in their territory which are not covered by the scope of this Directive and for vehicles listed in paragraph 2.

Article 3

Definitions

The following definitions shall only apply for the purposes of this Directive:

(1)

‘vehicle’ means any not rail-borne motor vehicle or its trailer;

(2)

‘motor vehicle’ means any power-driven vehicle on wheels which is moved by its own means with a maximum design speed exceeding 25 km/h;

(3)

‘trailer’ means any non-self propelled vehicle on wheels which is designed and constructed to be towed by a motor vehicle;

(4)

‘semi-trailer’ means any trailer designed to be coupled to a motor vehicle in such a way that part of it rests on the motor vehicle and a substantial part of its mass and the mass of its load is borne by the motor vehicle;

(5)

‘two- or three-wheel vehicle’ means any power-driven vehicle on two wheels, with or without a sidecar, and any tricycle or quadricycle;

(6)

‘vehicle registered in a Member State’ means a vehicle which is registered or put into service in a Member State;

(7)

‘vehicle of historical interest’ means any vehicle which is considered to be historical by the Member State of registration or one of its appointed authorising bodies and which fulfils all the following conditions:

it was manufactured or registered for the first time at least 30 years ago;

its specific type, as defined in the relevant Union or national law, is no longer in production;

it is historically preserved and maintained in its original state and has not undergone substantial changes in the technical characteristics of its main components;

(8)

‘holder of a registration certificate’ means the legal or natural person in whose name the vehicle is registered;

(9)

‘roadworthiness test’ means an inspection in accordance with Annex I designed to ensure that a vehicle is safe to be used on public roads and that it complies with required and mandatory safety and environmental characteristics;

(10)

‘approval’ means a procedure whereby a Member State certifies that a vehicle satisfies the relevant administrative provisions and technical requirements referred to in Directive 2002/24/EC, Directive 2003/37/EC and Directive 2007/46/EC;

(11)

‘deficiencies’ means technical defects and other instances of non-compliance found during a roadworthiness test;

(12)

‘roadworthiness certificate’ means a roadworthiness test report issued by the competent authority or a testing centre containing the result of the roadworthiness test;

(13)

‘inspector’ means a person authorised by a Member State or by its competent authority to carry out roadworthiness tests in a testing centre or, where appropriate, on behalf of a competent authority;

(14)

‘competent authority’ means an authority or public body entrusted by a Member State with responsibility for managing the system of roadworthiness testing, including, where appropriate, the carrying-out of roadworthiness tests;

(15)

‘testing centre’ means a public or private body or establishment authorised by a Member State to carry out roadworthiness tests;

(16)

‘supervising body’ means a body or bodies set up by a Member State, responsible for the supervision of testing centres. A supervising body can be part of the competent authority or competent authorities;

(17)

‘small island’ means an island with fewer than 5 000 inhabitants which is not linked to the other parts of territory by road bridges or road tunnels;

(18)

‘sparsely populated area’ means a predefined area with a population density of fewer than five persons per square kilometre;

(19)

‘public road’ means a road that is of general public utility, such as a local, regional or national road, highway, expressway or motorway.

CHAPTER II

GENERAL OBLIGATIONS

Article 4

Responsibilities

1.   Each Member State shall ensure that vehicles registered in its territory are periodically tested in accordance with this Directive by testing centres authorised by the Member State in which those vehicles are registered.

2.   Roadworthiness tests shall be carried out by the Member State of registration of the vehicle, by a public body entrusted with the task by that Member State or by bodies or establishments designated and supervised by that Member State, including authorised private bodies.

3.   In accordance with the principles laid down by Regulation (EC) No 715/2007 of the European Parliament and of the Council (11) and by Regulation (EC) No 595/2009 of the European Parliament and of the Council (12), the Commission shall, by means of implementing acts, and before 20 May 2018, adopt:

(a)

a set of technical information on braking equipment, steering, visibility, lamps, reflectors, electrical equipment, axles, wheels, tyres, suspension, chassis, chassis attachments, other equipment and nuisance necessary for roadworthiness testing of the items to be tested and on the use of the recommended test methods, in accordance with point 3 of Annex I, and

(b)

the detailed rules concerning the data format and the procedures for accessing the relevant technical information.

Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 19(2).

The technical information referred to in point (a) of the first subparagraph shall be made available, free of charge or at a reasonable price, by the manufacturers to testing centres and relevant competent authorities, in a non-discriminatory manner.

The Commission shall examine the feasibility of establishing a single point of access for that technical information.

4.   Member States shall ensure that the responsibilities for keeping a vehicle in a safe and roadworthy condition are defined in national law.

CHAPTER III

MINIMUM REQUIREMENTS CONCERNING ROADWORTHINESS TESTS

Article 5

Date and frequency of testing

1.   Vehicles shall be subject to a roadworthiness test at least within the following intervals, without prejudice to the period of flexibility applied in Member States under paragraph 3:

(a)

vehicles of category M1 and N1: four years after the date on which the vehicle was first registered, and thereafter every two years;

(b)

vehicles of category M1 used as taxis or ambulances, vehicles of categories M2, M3, N2, N3, O3 and O4: one year after the date on which the vehicle was first registered, and thereafter annually;

(c)

vehicles of category T5 the use of which mainly takes place on public roads for commercial road haulage purposes: four years after the date on which the vehicle was first registered, and thereafter every two years.

2.   Member States shall establish appropriate intervals within which vehicles of categories L3e, L4e, L5e and L7e, with an engine displacement of more than 125 cm3, are to be subject to a roadworthiness test.

3.   Member States or competent authorities may establish a reasonable period during which the roadworthiness test is to be carried out, not exceeding the intervals laid down in paragraph 1.

4.   Notwithstanding the date of a vehicle’s last roadworthiness test, the Member State or competent authority concerned may require it to undergo a roadworthiness test before the dates referred to in paragraphs 1 and 2 in the following cases:

after an accident affecting the main safety-related components of the vehicle, such as wheels, suspension, deformation zones, airbag systems, steering or brakes;

when the safety and environmental systems and components of the vehicle have been altered or modified;

where the holder of the registration certificate of a vehicle has changed;

when the vehicle has reached a mileage of 160 000 km;

in cases where road safety is seriously affected.

Article 6

Contents and methods of testing

1.   For vehicle categories falling within the scope of this Directive, with the exception of categories L3e, L4e, L5e and L7e with an engine displacement of more than 125 cm3, Member States shall ensure that roadworthiness tests cover at least the areas referred to in point 2 of Annex I.

2.   For each area referred to in paragraph 1, the competent authorities of the Member State or the testing centre shall carry out a roadworthiness test covering at least the items referred to in point 3 of Annex I, using the recommended or an equivalent method approved by a competent authority applicable to the testing of those items, as set out in point 3 of Annex I. The test may also include a verification as to whether the respective parts and components of the vehicle correspond to the required safety and environmental characteristics that were in force at the time of approval or, if applicable, at the time of retrofitting.

The tests shall be carried out using techniques and equipment currently available without the use of tools to dismantle or remove any part of the vehicle.

3.   For vehicle categories L3e, L4e, L5e and L7e, with an engine displacement of more than 125 cm3, Member States shall determine the areas, items and appropriate methods of testing.

Article 7

Assessment of deficiencies

1.   For each item to be tested, Annex I provides a minimum list of possible deficiencies and their level of severity.

2.   Deficiencies that are found during periodic testings of vehicles shall be categorised in one of the following groups:

(a)

minor deficiencies having no significant effect on the safety of the vehicle or impact on the environment, and other minor non-compliances;

(b)

major deficiencies that may prejudice the safety of the vehicle or have an impact on the environment or put other road users at risk, or other more significant non-compliances;

(c)

dangerous deficiencies constituting a direct and immediate risk to road safety or having an impact on the environment which justify that a Member State or its competent authorities may prohibit the use of the vehicle on public roads.

3.   A vehicle having deficiencies falling into more than one of the deficiency groups referred to in paragraph 2 shall be classified in the group corresponding to the more serious deficiency. A vehicle showing several deficiencies within the same inspection area as identified in the scope of the test referred to in point 2 of Annex I, may be classified in the next most serious deficiency group if it can be demonstrated that the combined effect of those deficiencies results in a higher risk to road safety.

Article 8

Roadworthiness certificate

1.   Member States shall ensure that testing centres or, if relevant, the competent authorities, which have carried out a roadworthiness test on a vehicle issue a roadworthiness certificate for that vehicle indicating at least the standardised elements of the corresponding harmonised Union codes as laid down in Annex II.

2.   Member States shall ensure that testing centres or, if relevant, the competent authorities make the roadworthiness certificate or, in the case of an electronically produced roadworthiness certificate, a certified printout of such certificate available to the person presenting the vehicle for testing.

3.   Without prejudice to Article 5, in the case of re-registration of a vehicle already registered in another Member State, each Member State shall recognise the roadworthiness certificate issued by that other Member State, as if it had itself issued that certificate, provided that the roadworthiness certificate is still valid in terms of the frequency intervals established for periodic roadworthiness tests by the re-registering Member State. In cases of doubt, the re-registering Member State may verify the validity of the roadworthiness certificate before recognising it. Member States shall communicate to the Commission a description of the roadworthiness certificate before 20 May 2018. The Commission shall inform the Committee referred to in Article 19. This paragraph shall not apply to vehicle categories L3e, L4e, L5e and L7e.

4.   Without prejudice to Article 5(4) and paragraph 3 of this Article, Member States shall recognise, as a matter of principle, the validity of the roadworthiness certificate in the event that the ownership of a vehicle — having a valid proof of periodic roadworthiness test — changes.

5.   As from 20 May 2018 and at the latest by 20 May 2021, testing centres shall communicate electronically, to the competent authority of the Member State concerned, the information mentioned in the roadworthiness certificates which they issue. Such communication shall take place within a reasonable time after each roadworthiness certificate is issued. Until the latter date, testing centres may communicate the relevant information to the competent authority by any other means. Member States shall determine the period during which the competent authority is to retain that information. The duration of that period shall not be less than 36 months, without prejudice to the national tax systems of the Member States.

6.   Member States shall ensure that, for the purposes of checking the odometer, where an odometer is normally fitted, the information included in the previous roadworthiness test is made available to the inspectors as soon as it is available electronically. In cases where an odometer is found to have been manipulated with the aim of reducing or misrepresenting the distance record of a vehicle, such manipulation shall be punishable by effective, proportionate, dissuasive and non-discriminatory penalties.

7.   Member States shall ensure that the results of the roadworthiness test are notified, or made available electronically, as soon as possible to the authority responsible for registration of the vehicle. That notification shall contain the information mentioned in the roadworthiness certificate.

Article 9

Follow-up of deficiencies

1.   In the case of minor deficiencies only, the test shall be deemed to have been passed, the deficiencies shall be rectified, and the vehicle shall not be re-tested.

2.   In the case of major deficiencies, the test shall be deemed to have been failed. The Member State or the competent authority shall decide on the period during which the vehicle in question may be used before it is required to undergo another roadworthiness test. The subsequent test shall take place during a period defined by the Member State or competent authority but not later than two months following the initial test.

3.   In the case of dangerous deficiencies, the test shall be deemed to have been failed. The Member State or the competent authority may decide that the vehicle in question is not to be used on public roads and that the authorisation for its use in road traffic is to be suspended for a limited period of time, without requiring a new process of registration, until such time as the deficiencies are rectified and a new roadworthiness certificate is issued testifying that the vehicle is in a roadworthy condition.

Article 10

Proof of test

1.   The testing centre or, if relevant, the competent authority of the Member State that has carried out a roadworthiness test on a vehicle registered in its territory shall provide a proof, such as an indication on the vehicle registration document, a sticker, a certificate or any other easily accessible information, for each vehicle which has passed such a test. The proof shall indicate the date by which the next roadworthiness test is to take place.

Member States shall communicate to the Commission a description of that proof before 20 May 2018. The Commission shall in turn inform the Committee referred to in Article 19.

2.   Where the tested vehicle belongs to a vehicle category which is not subject to registration in the Member State where it has been put into service, that Member State may require the proof of test to be displayed in a visible manner on that vehicle.

3.   For the purpose of free circulation, each Member State shall recognise the proof provided by a testing centre or competent authority of another Member State in accordance with paragraph 1.

CHAPTER IV

ADMINISTRATIVE PROVISIONS

Article 11

Testing facilities and equipment

1.   Member States shall ensure that testing facilities and equipment used for carrying out roadworthiness tests comply with the minimum technical requirements laid down in Annex III.

2.   Member States shall ensure that the testing centres or, if relevant, the competent authority maintain the testing facilities and equipment in accordance with the specifications provided by the manufacturers.

3.   Equipment used for measurements shall be periodically calibrated in line with Annex III and verified in accordance with the specifications provided by the Member State concerned or by the manufacturer of the equipment.

Article 12

Testing centres

1.   Testing centres in which inspectors perform roadworthiness tests shall be authorised by a Member State or by its competent authority.

2.   To meet minimum requirements in terms of quality management, testing centres shall comply with the requirements laid down by the authorising Member State. Testing centres shall ensure the objectivity and the high quality of the roadworthiness tests.

Article 13

Inspectors

1.   Member States shall ensure that roadworthiness tests are carried out by inspectors fulfilling the minimum competence and training requirements laid down in Annex IV. Member States may lay down additional requirements in respect of competence and corresponding training.

2.   The competent authorities or, where applicable, approved training centres shall provide a certificate to inspectors who fulfil the minimum competence and training requirements. That certificate shall include at least the information mentioned in point 3 of Annex IV.

3.   Inspectors employed or authorised by competent authorities of the Member States or by a testing centre at 20 May 2018 shall be exempted from the requirements laid down in point 1 of Annex IV.

4.   When carrying out a roadworthiness test, the inspector shall be free from any conflict of interests so as to ensure, to the satisfaction of the Member State or competent authority concerned, that a high level of impartiality and objectivity is maintained.

5.   The person presenting the vehicle for testing shall be informed of any deficiencies identified in the vehicle which need to be rectified.

6.   The results of a roadworthiness test may only be modified, where appropriate, by the supervising body, or in accordance with the procedure set up by the competent authority, if the findings of the roadworthiness test are manifestly incorrect.

Article 14

Supervision of testing centres

1.   Member States shall ensure that testing centres are supervised.

2.   A supervising body shall perform at least the tasks provided for in point 1 of Annex V and shall fulfil the requirements laid down in points 2 and 3 of that Annex.

Member States shall make publicly available the rules and procedures covering the organisation, tasks and requirements, including the independence requirements applicable to the personnel of a supervising body.

3.   Testing centres directly operated by a competent authority shall be exempted from the requirements regarding authorisation and supervision where the supervising body is part of the competent authority.

4.   The requirements mentioned in paragraphs 2 and 3 of this Article may be regarded as fulfilled by Member States which require that testing centres be accredited under Regulation (EC) No 765/2008.

CHAPTER V

COOPERATION AND EXCHANGE OF INFORMATION

Article 15

Administrative cooperation between Member States

1.   Member States shall designate a national contact point responsible for exchanging information with the other Member States and the Commission with regard to the application of this Directive.

2.   Member States shall forward to the Commission the names and contact details of their national contact point by 20 May 2015, and shall inform it without delay of any changes thereto. The Commission shall draw up a list of all contact points and forward it to the Member States.

Article 16

Electronic vehicle information platform

The Commission shall examine the feasibility, costs and benefits of establishing an electronic vehicle information platform by taking advantage of existing and already implemented IT solutions with regard to international data exchange so as to minimise costs and avoid duplication. In examining the matter, the Commission shall consider the most appropriate way to link the existing national systems with a view to facilitating exchanges of information on data relating to roadworthiness testing and odometer readings between the competent authorities of Member States responsible for testing, registration and vehicle approval, testing centres, test equipment manufacturers and vehicle manufacturers.

The Commission shall also examine the feasibility, costs and benefits of collecting and storing available information concerning the main safety-related components of vehicles which have been involved in serious accidents as well as the possibility of making information on accident history and odometer readings available in an anonymised form to inspectors, holders of registration certificates and accident researchers.

CHAPTER VI

DELEGATED AND IMPLEMENTING ACTS

Article 17

Delegated acts

The Commission shall be empowered to adopt delegated acts in accordance with Article 18 in order to:

update only the vehicle category designations referred to in Article 2(1) and Article 5(1) and (2) as appropriate in the event of changes to the vehicle categories stemming from amendments to the type-approval legislation referred to in Article 2(1), without affecting the scope and frequency of testing;

update point 3 of Annex I in respect of methods in the event that more efficient and effective test methods become available, without extending the list of items to be tested;

adapt point 3 of Annex I, following a positive assessment of the costs and benefits involved, in respect of the list of test items, methods, reasons for failure and assessment of deficiencies in the event of a modification of mandatory requirements relevant for type-approval in Union safety or environmental legislation.

Article 18

Exercise of delegation

1.   The power to adopt delegated acts is conferred on the Commission subject to the conditions laid down in this Article.

2.   The power to adopt delegated acts referred to in Article 17 shall be conferred on the Commission for a period of five years from 19 May 2014. The Commission shall draw up a report in respect of the delegation of power not later than nine months before the end of the five-year period. The delegation of power shall be tacitly extended for periods of an identical duration, unless the European Parliament or the Council opposes such extension not later than three months before the end of each period.

3.   The delegation of powers referred to in Article 17 may be revoked at any time by the European Parliament or by the Council. A decision to revoke shall put an end to the delegation of the power specified in that decision. It shall take effect the day following the publication of the decision in the Official Journal of the European Union or at a later date specified therein. It shall not affect the validity of any delegated acts already in force.

4.   As soon as it adopts a delegated act, the Commission shall notify it simultaneously to the European Parliament and to the Council.

5.   A delegated act adopted pursuant to Article 17 shall enter into force only if no objection has been expressed by either the European Parliament or the Council within a period of two months of notification of that act to the European Parliament and the Council or if, before the expiry of that period, the European Parliament and the Council have both informed the Commission that they will not object. That period shall be extended by two months at the initiative of the European Parliament or of the Council.

Article 19

Committee Procedure

1.   The Commission shall be assisted by a committee (the ‘Roadworthiness Committee’). That committee shall be a committee within the meaning of Regulation (EU) No 182/2011.

2.   Where reference is made to this paragraph, Article 5 of Regulation (EU) No 182/2011 shall apply. Where the committee delivers no opinion, the Commission shall not adopt the draft implementing act and the third subparagraph of Article 5(4) of Regulation (EU) No 182/2011 shall apply.

CHAPTER VII

FINAL PROVISIONS

Article 20

Reporting

1.   By 30 April 2020, the Commission shall submit a report to the European Parliament and the Council on the implementation and effects of this Directive, in particular as regards the level of harmonisation of periodic roadworthiness tests, the effectiveness of the provisions on its scope, the frequency of testing, the mutual recognition of roadworthiness certificates in cases of re-registration of vehicles originating from another Member State and the results of the examination concerning the feasibility of introducing an electronic vehicle information platform as referred to in Article 16. The report shall also analyse whether there is a need to update the Annexes, particularly in the light of technical progress and practices. The report shall be submitted after the consultation of the committee referred to in Article 19 and shall be accompanied, if appropriate, by legislative proposals.

2.   No later than 30 April 2019, the Commission shall submit to the European Parliament and to the Council a report, based on independent studies, on the effectiveness of the inclusion of light trailers and two- or three-wheel vehicles in the scope of this Directive. The report shall assess the evolution of the road safety situation in the Union and, for each subcategory of L-vehicles, compare the results of national road safety measures, taking into account the average distance travelled by those vehicles. In particular, the Commission shall assess whether the standards and costs of periodic roadworthiness testing of each category of vehicle is proportionate to the road safety objectives set. The report shall be accompanied by a detailed impact assessment analysing the costs and benefits throughout the Union, including the specificities of Member States. The report shall be made available at least six months prior to the submission of any legislative proposal, if appropriate, to include new categories within the scope of this Directive.

Article 21

Penalties

The Member States shall lay down the rules on penalties applicable to infringements of the provisions of this Directive and shall take all measures necessary to ensure that they are implemented. Those penalties shall be effective, proportionate, dissuasive and non-discriminatory.

Article 22

Transitional provisions

1.   Member States may authorise the use for a period of not more than five years after 20 May 2018 of testing facilities and equipment referred to in Article 11 that do not comply with the minimum requirements laid down in Annex III for carrying out roadworthiness tests.

2.   Member States shall apply the requirements laid down in Annex V at the latest as from 1 January 2023.

Article 23

Transposition

1.   Member States shall adopt and publish, by 20 May 2017, the laws, regulations and administrative measures necessary to comply with this Directive. They shall immediately inform the Commission thereof.

They shall apply those measures from 20 May 2018.

When Member States adopt those measures, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. The methods of making such reference shall be laid down by Member States.

2.   Member States shall communicate to the Commission the text of the main measures of national law which they adopt in the field covered by this Directive.

Article 24

Repeal

Directive 2009/40/EC is repealed with effect from 20 May 2018.

Article 25

Entry into force

This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.

Article 26

Addressees

This Directive is addressed to the Member States.

Done at Brussels, 3 April 2014.

For the European Parliament

The President

M. SCHULZ

For the Council

The President

D. KOURKOULAS


(1)  OJ C 44, 15.2.2013, p. 128.

(2)  Position of the European Parliament of 11 March 2014 (not yet published in the Official Journal) and decision of the Council of 24 March 2014.

(3)  Directive 2002/24/EC of the European Parliament and of the Council of 18 March 2002 relating to the type-approval of two or three-wheel motor vehicles and repealing Council Directive 92/61/EEC (OJ L 124, 9.5.2002, p. 1).

(4)  Directive 2003/37/EC of the European Parliament and of the Council of 26 May 2003 on type-approval of agricultural or forestry tractors, their trailers and interchangeable towed machinery, together with their systems, components and separate technical units and repealing Directive 74/150/EEC (OJ L 171, 9.7.2003, p. 1).

(5)  Directive 2007/46/EC of the European Parliament and of the Council of 5 September 2007 establishing a framework for the approval for motor vehicles and their trailers, and of systems, components and separate technical units intended for such vehicles (OJ L 263, 9.10.2007, p. 1).

(6)  Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market (OJ L 376, 27.12.2006, p. 36).

(7)  Regulation (EC) No 765/2008 of the European Parliament and of the Council of 9 July 2008 setting out the requirements for accreditation and market surveillance relating to the marketing of products and repealing Regulation (EEC) No 339/93 (OJ L 218, 13.8.2008, p. 30).

(8)  Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down the rules and general principles concerning mechanisms for control by the Member States of the Commission’s exercise of implementing powers (OJ L 55, 28.2.2011, p. 13).

(9)  Commission Recommendation 2010/378/EU of 5 July 2010 on the assessment of defects during roadworthiness testing in accordance with Directive 2009/40/EC (OJ L 173, 8.7.2010, p. 74).

(10)  Directive 2009/40/EC of the European Parliament and of the Council of 6 May 2009 on roadworthiness tests for motor vehicles and their trailers (OJ L 141, 6.6.2009, p. 12).

(11)  Regulation (EC) No 715/2007 of the European Parliament and of the Council of 20 June 2007 on type approval of motor vehicles with respect to emissions from light passenger and commercial vehicles (Euro 5 and Euro 6) and on access to vehicle repair and maintenance information (OJ L 171, 29.6.2007, p. 1).

(12)  Regulation (EC) No 595/2009 of the European Parliament and of the Council of 18 June 2009 on type-approval of motor vehicles and engines with respect to emissions from heavy duty vehicles (Euro VI) and on access to vehicle repair and maintenance information and amending Regulation (EC) No 715/2007 and Directive 2007/46/EC and repealing Directives 80/1269/EEC, 2005/55/EC and 2005/78/EC (OJ L 188, 18.7.2009, p. 1).


ANNEX I

MINIMUM REQUIREMENTS CONCERNING THE CONTENTS AND RECOMMENDED METHODS OF TESTING

1.   GENERAL

This Annex identifies the vehicle systems and components to be tested; it details the recommended methods for testing them and the criteria to be used when determining whether the condition of the vehicle is acceptable.

The test must cover at least the items listed in point 3 below provided that these relate to the equipment of the vehicle being tested in the Member State concerned. The test may also include a verification as to whether the relevant parts and components of that vehicle correspond to the required safety and environmental characteristics that were in force at the time of approval or, if applicable, at the time of retrofitting.

Where the design of the vehicle does not allow the application of the test methods laid down in this Annex, the test shall be conducted in accordance with the recommended test methods accepted by the competent authorities. The competent authority must be satisfied that safety and environmental standards will be maintained.

Testing of all the items listed below shall be considered as mandatory in the context of a periodic roadworthiness test, with the exception of those marked with the indication ‘X’ which are related to the condition of the vehicle and its suitability for use on the road but which are not considered essential in the context of a roadworthiness test.

The ‘Reasons for failure’ do not apply in cases where they refer to requirements that were not prescribed in the relevant vehicle approval legislation at the time of first registration or first entry into service, or in the retrofitting requirements.

Where a method of testing is indicated as visual, it means that, in addition to looking at the items concerned, the inspector shall also, if appropriate, handle them, evaluate their noise or use any other appropriate means of inspection not involving the use of equipment.

2.   SCOPE OF TEST

The test shall cover at least the following areas:

(0)

Identification of the vehicle;

(1)

Braking equipment;

(2)

Steering;

(3)

Visibility;

(4)

Lighting equipment and parts of the electrical system;

(5)

Axles, wheels, tyres, suspension;

(6)

Chassis and chassis attachments;

(7)

Other equipment;

(8)

Nuisance;

(9)

Supplementary tests for passenger-carrying vehicles of categories M2 and M3.

3.   CONTENTS AND METHODS OF TESTING; ASSESSMENT OF DEFICIENCIES OF VEHICLES

The test shall cover at least the items, and use the minimum standards and the recommended methods, listed in the following table.

For each vehicle system and component subject to testing, the assessment of deficiencies shall be carried out in accordance with the criteria set out in that table, on a case-by-case basis.

Deficiencies not listed in this Annex shall be assessed in terms of the risks that they pose to road safety.

Item

Method

Reasons for failure

Assessment of deficiencies

 

Minor

Major

Dangerous

0.   

IDENTIFICATION OF THE VEHICLE

0.1.

Registration number plates (if needed by requirements1)

Visual inspection

(a)

Number plate(s) missing or so insecurely fixed that it is (they are) likely to fall off.

 

X

 

(b)

Inscription missing or illegible

 

X

 

(c)

Not in accordance with vehicle documents or records.

 

X

 

0.2.

Vehicle identification/chassis/serial number

Visual inspection

(a)

Missing or can not be found.

 

X

 

(b)

Incomplete, illegible, obviously falsified, or does not match the vehicle documents.

 

X

 

(c)

Illegible vehicle documents or clerical inaccuracies.

X

 

 

1.   

BRAKING EQUIPMENT

1.1.   

Mechanical condition and operation

1.1.1.

Service brake pedal/hand lever pivot

Visual inspection of the components while the braking system is operated.

Note: Vehicles with power-assisted braking systems should be inspected with the engine switched off.

(a)

Pivot too tight.

 

X

 

(b)

Excessive wear or play.

 

X

 

1.1.2.

Pedal/hand lever condition and travel of the brake operating device

Visual inspection of the components while the braking system is operated

Note: Vehicles with power-assisted braking systems should be inspected with the engine switched off.

(a)

Excessive or insufficient reserve travel.

 

X

 

(b)

Brake control not releasing correctly.

If its functionality is affected.

X

X

 

(c)

Anti-slip provision on brake pedal missing, loose or worn smooth.

 

X

 

1.1.3.

Vacuum pump or compressor and reservoirs

Visual inspection of the components at normal working pressure. Check time required for vacuum or air pressure to reach safe working value and function of warning device, multi-circuit protection valve and pressure relief valve.

(a)

Insufficient pressure/vacuum to give assistance for at least four brake applications after the warning device has operated (or gauge shows an unsafe reading);

at least two brake applications after the warning device has operated (or gauge shows an unsafe reading).

 

X

X

(b)

Time taken to build up air pressure/vacuum to safe working value is too long according to the requirements1

 

X

 

(c)

Multi-circuit protection valve or pressure relief valve not working.

 

X

 

(d)

Air leak causing a noticeable drop in pressure or audible air leaks.

 

X

 

(e)

External damage likely to affect the function of the braking system.

Secondary braking performance not met.

 

X

X

1.1.4.

Low pressure warning gauge or indicator

Functional check

Malfunctioning or defective gauge or indicator.

Low pressure not identifiable.

X

X

 

1.1.5.

Hand-operated brake control valve

Visual inspection of the components while the braking system is operated.

(a)

Control cracked, damaged or excessively worn.

 

X

 

(b)

Control insecure on valve or valve insecure.

 

X

 

(c)

Loose connections or leaks in system.

 

X

 

(d)

Unsatisfactory operation.

 

X

 

1.1.6.

Parking brake activator, lever control, parking brake ratchet, electronic parking brake

Visual inspection of the components while the braking system is operated.

(a)

Ratchet not holding correctly.

 

X

 

(b)

Wear at lever pivot or in ratchet mechanism.

Excessive wear.

X

X

 

(c)

Excessive movement of lever indicating incorrect adjustment.

 

X

 

(d)

Activator missing, damaged or inoperative.

 

X

 

(e)

Incorrect functioning, warning indicator shows malfunction

 

X

 

1.1.7.

Braking valves (foot valves, unloaders, governors)

Visual inspection of the components while the braking system is operated.

(a)

Valve damaged or excessive air leak.

If its functionality is affected.

 

X

X

(b)

Excessive oil discharge from compressor.

X

 

 

(c)

Valve insecure or inadequately mounted.

 

X

 

(d)

Hydraulic fluid discharge or leak.

If its functionality is affected.

 

X

X

1.1.8.

Couplings for trailer brakes (electrical & pneumatic)

Disconnect and reconnect braking system coupling between towing vehicle and trailer.

(a)

Tap or self sealing valve defective.

If its functionality is affected.

X

X

 

(b)

Tap or valve insecure or inadequately mounted.

If its functionality is affected.

X

X

 

(c)

Excessive leaks.

If its functionality is affected.

 

X

X

(d)

Not functioning correctly.

Operation of brake affected.

 

X

X

1.1.9.

Energy storage reservoir pressure tank

Visual inspection.

(a)

Tank slightly damaged or slightly corroded.

Tank heavily damaged, corroded or leaking.

X

X

 

(b)

Drain device operation affected.

Drain device inoperative.

X

X

 

(c)

Tank insecure or inadequately mounted.

 

X

 

1.1.10.

Brake servo units, master cylinder (hydraulic systems)

Visual inspection of the components while the braking system is operated, if possible.

(a)

Defective or ineffective servo unit.

If it is not operating.

 

X

X

(b)

Master cylinder defective but brake still operating.

Master cylinder defective or leaking.

 

X

X

(c)

Master cylinder insecure but brake still operating.

Master cylinder insecure.

 

X

X

(d)

Insufficient brake fluid below MIN mark

Brake fluid significantly below MIN mark

No brake fluid visible.

X

X

X

(e)

Master cylinder reservoir cap missing.

X

 

 

(f)

Brake fluid warning light illuminated or defective.

X

 

 

(g)

Incorrect functioning of brake fluid level warning device.

X

 

 

1.1.11.

Rigid brake pipes

Visual inspection of the components while the braking system is operated, if possible.

(a)

Imminent risk of failure or fracture.

 

 

X

(b)

Pipes or connections leaking (air brake systems).

Pipes or connection leaking (hydraulic brake systems).

 

X

X

(c)

Pipes damaged or excessively corroded.

Affecting the functioning of the brakes on account of blocking or imminent risk of leaking.

 

X

X

(d)

Pipes misplaced.

Risk of damage.

X

X

 

1.1.12.

Flexible brake hoses

Visual inspection of the components while the braking system is operated, if possible.

(a)

Imminent risk of failure or fracture.

 

 

X

(b)

Hoses damaged, chafing, twisted or too short.

Hoses damaged or chafing.

X

X

 

(c)

Hoses or connections leaking (air brake systems)

Hoses or connections leaking (hydraulic brake systems).

 

X

X

(d)

Hoses bulging under pressure.

Cord impaired.

 

X

X

(e)

Hoses porous.

 

X

 

1.1.13.

Brake linings and pads

Visual inspection.

(a)

Lining or pad excessively worn (minimum mark reached).

Lining or pad excessively worn (minimum mark not visible).

 

X

X

(b)

Lining or pad contaminated (oil, grease etc.).

Braking performance affected.

 

X

X

(c)

Lining or pad missing or wrongly mounted.

 

 

X

1.1.14.

Brake drums, brake discs

Visual inspection.

(a)

Drum or disc worn

Drum or disc excessively worn, excessively scored, cracked, insecure or fractured.

 

X

X

(b)

Drum or disc contaminated (oil, grease, etc.).

Braking performance affected.

 

X

X

(c)

Drum or disc missing.

 

 

X

(d)

Back plate insecure.

 

X

 

1.1.15.

Brake cables, rods, levers, linkages

Visual inspection of the components while the braking system is operated, if possible.

(a)

Cable damaged or knotted.

Braking performance affected.

 

X

X

(b)

Component excessively worn or corroded.

Braking performance affected.

 

X

X

(c)

Cable, rod or joint insecure.

 

X

 

(d)

Cable guide defective.

 

X

 

(e)

Restriction to free movement of the braking system.

 

X

 

(f)

Abnormal movement of the levers/linkage indicating maladjustment or excessive wear.

 

X

 

1.1.16.

Brake actuators (including spring brakes or hydraulic cylinders)

Visual inspection of the components while the braking system is operated, if possible.

(a)

Actuator cracked or damaged.

Braking performance affected.

 

X

X

(b)

Actuator leaking.

Braking performance affected.

 

X

X

(c)

Actuator insecure or inadequately mounted.

Braking performance affected.

 

X

X

(d)

Actuator excessively corroded.

Likely to crack.

 

X

X

(e)

Insufficient or excessive travel of operating piston or diaphragm mechanism.

Braking performance affected (lack of reserve movement).

 

X

X

(f)

Dust cover damaged.

Dust cover missing or excessively damaged.

X

X

 

1.1.17.

Load sensing valve

Visual inspection of the components while the braking system is operated, if possible.

(a)

Defective linkage.

 

X

 

(b)

Linkage incorrectly adjusted.

 

X

 

(c)

Valve seized or inoperative (ABS functioning).

Valve seized or inoperative.

 

X

X

(d)

Valve missing (if required).

 

 

X

(e)

Missing data plate.

X

 

 

(f)

Data illegible or not in accordance with requirements1

X

 

 

1.1.18.

Slack adjusters and indicators

Visual inspection.

(a)

Adjuster damaged, seized or having abnormal movement, excessive wear or incorrect adjustment.

 

X

 

(b)

Adjuster defective.

 

X

 

(c)

Incorrectly installed or replaced.

 

X

 

1.1.19.

Endurance braking system (where fitted or required)

Visual inspection.

(a)

Insecure connectors or mountings.

If its functionality is affected.

X

X

 

(b)

System obviously defective or missing.

 

X

 

1.1.20.

Automatic operation of trailer brakes

Disconnect brake coupling between towing vehicle and trailer.

Trailer brake does not apply automatically when coupling disconnected.

 

 

X

1.1.21.

Complete braking system

Visual inspection

(a)

Other system devices (e.g. anti-freeze pump, air dryer, etc.) damaged externally or excessively corroded in a way that adversely affects the braking system.

Braking performance affected.

 

X

X

(b)

Leakage of air or anti-freeze.

System functionality affected.

X

X

 

(c)

Any component insecure or inadequately mounted.

 

X

 

(d)

Unsafe modification to any component3

Braking performance affected.

 

X

X

1.1.22.

Test connections (where fitted or required)

Visual inspection

(a)

Missing.

 

X

 

(b)

Damaged.

Unusable or leaking.

X

X

 

1.1.23.

Overrun brake

Visual inspection and by operation

Insufficient efficiency.

 

X

 

1.2.   

Service braking performance and efficiency

1.2.1.

Performance

During a test on a brake tester or, if impossible, during a road test, apply the brakes progressively up to maximum effort.

(a)

Inadequate braking effort on one or more wheels.

No braking effort on one or more wheels.

 

X

X

(b)

Braking effort from any wheel is less than 70 % of the maximum effort recorded from the other wheel on the same axle. Or, in the case of testing on the road, the vehicle deviates excessively from a straight line.

Braking effort from any wheel is less than 50 % of the maximum effort recorded from the other wheel on the same axle in the case of steered axles.

 

X

X

(c)

No gradual variation in brake effort (grabbing).

 

X

 

(d)

Abnormal lag in brake operation of any wheel.

 

X

 

(e)

Excessive fluctuation of brake force during each complete wheel revolution.

 

X

 

1.2.2.

Efficiency

Test with a brake tester or, if one cannot be used for technical reasons, by a road test using a deceleration recording instrument to establish the braking ratio which relates to the maximum authorised mass or, in the case of semi-trailers, to the sum of the authorised axle loads.

Vehicles or a trailer with a maximum permissible mass exceeding 3,5 tonnes has to be inspected following the standards given by ISO 21069 or equivalent methods.

Road tests should be carried out under dry conditions on a flat, straight road.

Does not give at least the minimum figure as follows (1):

1.

Vehicles registered for the first time after 1/1/2012:

Category M1: 58 %

Categories M2 and M3: 50 %

Category N1: 50 %

Categories N2 and N3: 50 %

Categories O2, O3 and O4:

for semi-trailers: 45 % (2)

for draw-bar trailers: 50 %

 

X

 

2.

Vehicles registered for the first time before 1/1/2012:

Categories M1, M2 and M3: 50 % (3)

Category N1: 45 %

Categories N2 and N3: 43 % (4)

Categories O2, O3 and O4: 40 % (5)

 

X

 

3.

Other categories

Categories L (both brakes together):

Category L1e: 42 %

Categories L2e, L6e: 40 %

Category L3e: 50 %

Category L4e: 46 %

Categories L5e, L7e: 44 %

Category L (rear wheel brake):

all categories: 25 % of the total vehicle mass

Less than 50 % of the above values reached.

 

X

X

1.3.   

Secondary (emergency) braking performance and efficiency (if met by separate system)

1.3.1.

Performance

If the secondary braking system is separate from the service braking system, use the method specified in 1.2.1.

(a)

Inadequate braking effort on one or more wheels.

No braking effort on one or more wheels.

 

X

X

(b)

Braking effort from any wheel is less than 70 % of the maximum effort recorded from another wheel on the same axle specified. Or, in the case of testing on the road, the vehicle deviates excessively from a straight line.

Braking effort from any wheel is less than 50 % of the maximum effort recorded from the other wheel on the same axle in the case of steered axles.

 

X

X

(c)

No gradual variation in brake effort (grabbing).

 

X

 

1.3.2.

Efficiency

If the secondary braking system is separate from the service braking system, use the method specified in 1.2.2.

Braking effort less than 50 % (6) of the service brake performance defined in section 1.2.2 in relation to the maximum authorized mass.

Less than 50 % of the above braking effort values reached.

 

X

X

1.4.   

Parking braking performance and efficiency

1.4.1.

Performance

Apply the brake during a test on a brake tester.

Brake inoperative on one side or, in the case of testing on the road, the vehicle deviates excessively from a straight line.

Less than 50 % of the braking effort values as referred to in point 1.4.2 reached in relation to the vehicle mass during testing.

 

X

X

1.4.2.

Efficiency

Test with a brake tester. If not possible, then by a road test using either an indicating or deceleration recording instrument or with the vehicle on a slope of known gradient.

Does not give, for all vehicles, a braking ratio of at least 16 % in relation to the maximum authorized mass or, for motor vehicles, of at least 12 % in relation to the maximum authorised combination mass of the vehicle, whichever is the greater.

Less than 50 % of the above braking effort values reached.

 

X

X

1.5.

Endurance braking system performance

Visual inspection and, where possible, test whether the system functions.

(a)

No gradual variation of efficiency (not applicable to exhaust brake systems).

 

X

 

(b)

System not functioning.

 

X

 

1.6.

Anti-lock braking system (ABS)

Visual inspection and inspection of warning device and/or using electronic vehicle interface.

(a)

Warning device malfunctioning.

 

X

 

(b)

Warning device shows system malfunction.

 

X

 

(c)

Wheel speed sensors missing or damaged.

 

X

 

(d)

Wirings damaged.

 

X

 

(e)

Other components missing or damaged.

 

X

 

(f)

System indicates failure via the electronic vehicle interface.

 

X

 

1.7.

Electronic brake system (EBS)

Visual inspection and inspection of warning device and/or using electronic vehicle interface.

(a)

Warning device malfunctioning.

 

X

 

(b)

Warning device shows system malfunction.

 

X

 

(c)

System indicates failure via the electronic vehicle interface.

 

X

 

1.8.

Brake fluid

Visual inspection

Brake fluid contaminated or sedimented.

Imminent risk of failure.

 

X

X

2.   

STEERING

2.1.   

Mechanical condition

2.1.1.

Steering gear condition

With the vehicle over a pit or on a hoist and with the road wheels off the ground or on turntables, rotate the steering wheel from lock to lock. Visual inspection of the operation of the steering gear.

(a)

Roughness in operation of gear.

 

X

 

(b)

Sector shaft twisted or splines worn.

Affecting functionality.

 

X

X

(c)

Excessive wear in sector shaft.

Affecting functionality.

 

X

X

(d)

Excessive movement of sector shaft.

Affecting functionality.

 

X

X

(e)

Leaking.

Formation of drops.

X

X

 

2.1.2.

Steering gear casing attachment

With vehicle on a pit or hoist and the weight of the vehicle road wheels on the ground, rotate steering/handle bar wheel clockwise and anticlockwise or using a specially adapted wheel play detector. Visual inspection of the attachment of gear casing to chassis.

(a)

Steering gear casing not properly attached.

Attachments dangerously loose or relative movement to chassis/bodywork visible.

 

X

X

(b)

Elongated fixing holes in chassis.

Attachments seriously affected.

 

X

X

(c)

Missing or fractured fixing bolts.

Attachments seriously affected.

 

X

X

(d)

Steering gear casing fractured.

Stability or attachment of casing affected.

 

X

X

2.1.3.

Steering linkage condition

With the vehicle over a pit or on a hoist and with the road wheel on the ground, rock steering wheel clockwise and anti-clockwise or using a specially adapted wheel play detector. Visual inspection of steering components for wear, fractures and security.

(a)

Relative movement between components which should be fixed.

Excessive movement or likely to unlink.

 

X

X

(b)

Excessive wear at joints.

A very serious risk of unlinking.

 

X

X

(c)

Fractures or deformation of any component.

Affecting function.

 

X

X

(d)

Absence of locking devices.

 

X

 

(e)

Misalignment of components (e.g. track rod or drag link).

 

X

 

(f)

Unsafe modification3.

Affecting function.

 

X

X

(g)

Dust cover damaged or deteriorated.

Dust cover missing or severely deteriorated.

X

X

 

2.1.4.

Steering linkage operation

With the vehicle over a pit or on a hoist and with the road wheel on the ground, rock steering wheel clockwise and anti-clockwise or using a specially adapted wheel play detector. Visual inspection of steering components for wear, fractures and security.

(a)

Moving steering linkage fouling a fixed part of the chassis.

 

X

 

(b)

Steering stops not operating or missing.

 

X

 

2.1.5.

Power steering

Check steering system for leaks and hydraulic fluid reservoir level (if visible). With the road wheels on the ground and with the engine running, check that the power steering system is operating.

(a)

Fluid leak or functions affected.

 

X

 

(b)

Insufficient fluid (below MIN mark).

Insufficient reservoir.

X

X

 

(c)

Mechanism not working.

Steering affected.

 

X

X

(d)

Mechanism fractured or insecure.

Steering affected.

 

X

X

(e)

Misalignment or fouling of components.

Steering affected.

 

X

X

(f)

Unsafe modification3.

Steering affected.

 

X

X

(g)

Cables/hoses damaged, excessively corroded.

Steering affected.

 

X

X

2.2.   

Steering wheel, column and handle bar

2.2.1.

Steering wheel/handle bar condition

With the vehicle over a pit or on a hoist and the mass of the vehicle on the ground, push and pull the steering wheel in line with column, push steering wheel/handle bar in various directions at right angles to the column/forks. Visual inspection of play, and condition of flexible couplings or universal joints.

(a)

Relative movement between steering wheel and column indicating looseness.

Very serious risk of unlinking.

 

X

X

(b)

Absence of retaining device on steering wheel hub.

Very serious risk of unlinking.

 

X

X

(c)

Fracture or looseness of steering wheel hub, rim or spokes.

Very serious risk of unlinking.

 

X

X

2.2.2.

Steering column/yokes and forks and steering dampers

With the vehicle over a pit or on a hoist and the mass of the vehicle on the ground, push and pull the steering wheel in line with column, push steering wheel/handle bar in various directions at right angles to the column/forks. Visual inspection of play, and condition of flexible couplings or universal joints.

(a)

Excessive movement of centre of steering wheel up or down.

 

X

 

(b)

Excessive movement of top of column radially from axis of column.

 

X

 

(c)

Deteriorated flexible coupling.

 

X

 

(d)

Attachment defective.

Very serious risk of unlinking.

 

X

X

(e)

Unsafe modification3

 

 

X

2.3.

Steering play

With the vehicle over a pit or on a hoist, the mass of the vehicle on the road wheels, the engine, if possible, running for vehicles with power steering and with the road wheels in the straight-ahead position, lightly turn the steering wheel clockwise and anti-clockwise as far as possible without moving the road wheels. Visual inspection of free movement.

Free play in steering excessive (for example, movement of a point on the rim exceeding one fifth of the diameter of the steering wheel or not in accordance with the requirements1.

Safe steering affected.

 

X

X

2.4.

Wheel alignment (X)2

Check alignment of steered wheels with suitable equipment.

Alignment not in accordance with vehicle manufacturer’s data or requirements1.

Straight on driving affected; directional stability impaired.

X

X

 

2.5.

Trailer steered axle turntable

Visual inspection or using a specially adapted wheel play detector

(a)

Component slightly damaged.

Component heavily damaged or cracked.

 

X

X

(b)

Excessive play.

Straight on driving affected; directional stability impaired.

 

X

X

(c)

Attachment defective.

Attachment seriously affected.

 

X

X

2.6.

Electronic Power Steering (EPS)

Visual inspection and consistency check between the angle of the steering wheel and the angle of the wheels when switching on/off the engine, and/or using the electronic vehicle interface

(a)

EPS malfunction indicator lamp (MIL) indicates any kind of failure of the system.

 

X

 

(b)

Inconsistency between the angle of the steering wheel and the angle of the wheels.

Steering affected.

 

X

X

(c)

Power assistance not working.

 

X

 

(d)

System indicates failure via the electronic vehicle interface.

 

X

 

3.   

VISIBILITY

3.1.

Field of vision

Visual inspection from driving seat.

Obstruction within driver’s field of view that materially affects his view in front or to the sides (outside cleaning area of windscreen wipers).

X

 

 

Inside cleaning area of windscreen wipers affected or outer mirrors not visible.

X

3.2.

Condition of glass

Visual inspection.

(a)

Cracked or discoloured glass or transparent panel (if permitted) (outside cleaning area of windscreen wipers).

X

 

 

Inside cleaning area of windscreen wipers affected or outer mirrors not visible.

X

(b)

Glass or transparent panel (including reflecting or tinted film) that does not comply with specifications in the requirements1, (outside cleaning area of windscreen wipers).

X

 

 

Inside cleaning area of windscreen wipers affected or outer mirrors not visible.

X

(c)

Glass or transparent panel in unacceptable condition.

 

X

 

Visibility through inside cleaning area of windscreen wipers heavily affected.

X

3.3.

Rear-view mirrors or devices

Visual inspection.

(a)

Mirror or device missing or not fitted according to the requirements1 (at least two rear-view devices available).

 

X

 

Fewer than two rear-view devices available.

X

(b)

Mirror or device slightly damaged or loose.

X

 

 

Mirror or device inoperative, heavily damaged, loose or insecure.

X

(c)

Necessary field of vision not covered.

 

X

 

3.4.

Windscreen wipers

Visual inspection and by operation.

(a)

Wipers not operating or missing or not in accordance with the requirements1

 

X

 

(b)

Wiper blade defective.

X

 

 

Wiper blade missing or obviously defective.

X

3.5.

Windscreen washers

Visual inspection and by operation.

Washers not operating adequately (lack of washing fluid but pump operating or water-jet misaligned).

X

 

 

Washers not operating.

X

3.6.

Demisting system (X)2

Visual inspection and by operation.

System inoperative or obviously defective.

X

 

 

4.   

LAMPS, REFLECTORS AND ELECTRICAL EQUIPMENT

4.1.   

Headlamps

4.1.1.

Condition and operation

Visual inspection and by operation.

(a)

Defective or missing light/light source.(multiple light/light sources; in the case of LED, up to 1/3 not functioning).

Single light/light sources; in the case of LED, seriously affected visibility.

X

X

 

(b)

Slightly defective projection system (reflector and lens).

Heavily defective or missing projection system (reflector and lens).

X

X

 

(c)

Lamp not securely attached.

 

X

 

4.1.2.

Alignment

Determine the horizontal aim of each headlamp on dipped beam using a headlamp aiming device or using the electronic vehicle interface.

(a)

Aim of a headlamp not within limits laid down in the requirements1.

 

X

 

(b)

System indicates failure via the electronic vehicle interface.

 

X

 

4.1.3.

Switching

Visual inspection and by operation or using the electronic vehicle interface

(a)

Switch does not operate in accordance with the requirements1 (Number of headlamps illuminated at the same time)

Maximum permitted light brightness to the front exceeded.

X

X

 

(b)

Function of control device impaired.

 

X

 

(c)

System indicates failure via the electronic vehicle interface.

 

X

 

4.1.4.

Compliance with requirements1.

Visual inspection and by operation.

(a)

Lamp, emitted colour, position, brightness or marking not in accordance with the requirements1.

 

X

 

(b)

Products on lens or light source which obviously reduce light brightness or change emitted colour.

 

X

 

(c)

Light source and lamp not compatible.

 

X

 

4.1.5.

Levelling devices (where mandatory)

Visual inspection and by operation, if possible, or using the electronic vehicle interface.

(a)

Device not operating.

 

X

 

(b)

Manual device cannot be operated from driver’s seat.

 

X

 

(c)

System indicates failure via the electronic vehicle interface.

 

X

 

4.1.6.

Headlamp cleaning device (where mandatory)

Visual inspection and by operation if possible.

Device not operating.

In the case of gas-discharging lamps.

X

X

 

4.2.   

Front and rear position lamps, side marker lamps, end outline marker lamps and daytime running lamps

4.2.1.

Condition and operation

Visual inspection and by operation.

(a)

Defective light source.

 

X

 

(b)

Defective lens.

 

X

 

(c)

Lamp not securely attached.

Very serious risk of falling off.

X

X

 

4.2.2.

Switching

Visual inspection and by operation.

(a)

Switch does not operate in accordance with the requirements1.

Rear position lamps and side marker lamps can be switched off when headlamps are on.

 

X

X

 

(b)

Function of control device impaired.

 

X

 

4.2.3.

Compliance with requirements1

Visual inspection and by operation.

(a)

Lamp, emitted colour, position, brightness or marking not in accordance with the requirements1.

Red light to the front or white light to the rear; heavily reduced light brightness.

X

X

 

(b)

Products on lens or light source which reduce light, brightness or change emitted colour.

Red light to the front or white light to the rear; heavily reduced light brightness.

X

X

 

4.3.   

Stop Lamps

4.3.1.

Condition and operation

Visual inspection and by operation.

(a)

Defective light source(multiple light source in the case of LED up to 1/3 not functioning).

Single light sources; in the case of LED less than 2/3 functioning.

All light sources not functioning.

X

X

X

(b)

Slightly defective lens (no influence on emitted light).

Heavily defective lens (emitted light affected).

X

X

 

(c)

Lamp not securely attached.

Very serious risk of falling off.

X

X

 

4.3.2.

Switching

Visual inspection and by operation or using the electronic vehicle interface.

(a)

Switch does not operate in accordance with the requirements1.

Delayed operation.

No operation at all.

X

X

X

(b)

Function of control device impaired.

 

X

 

(c)

System indicates failure via the electronic vehicle interface.

 

X

 

(d)

Emergency brake light functions fail to operate, or do not operate correctly.

 

X

 

4.3.3.

Compliance with requirements1.

Visual inspection and by operation.

Lamp, emitted colour, position, brightness or marking not in accordance with the requirements1.

White light to the rear; heavily reduced light brightness.

X

X

 

4.4.   

Direction indicator and hazard warning lamps

4.4.1.

Condition and operation

Visual inspection and by operation.

(a)

Defective light source (multiple light source in the case of LED up to 1/3 not functioning).

Single light sources; in the case of LED less than 2/3 functioning.

X

X

 

(b)

Slightly defective lens (no influence on emitted light).

Heavily defective lens (emitted light affected).

X

X

 

(c)

Lamp not securely attached.

Very serious risk of falling off.

X

X

 

4.4.2.

Switching

Visual inspection and by operation.

Switch does not operate in accordance with the requirements1.

No operation at all.

X

X

 

4.4.3.

Compliance with requirements1.

Visual inspection and by operation.

Lamp, emitted colour, position, brightness or marking not in accordance with the requirements1.

 

X

 

4.4.4.

Flashing frequency

Visual inspection and by operation.

Rate of flashing not in accordance with the requirements1.(frequency more than 25 % deviating).

X

 

 

4.5.   

Front and rear fog lamps

4.5.1.

Condition and operation

Visual inspection and by operation.

(a)

Defective light source. (multiple light source in the case of LED up to 1/3 not functioning).

Single light sources; in the case of LED less than 2/3 functioning.

X

X

 

(b)

Slightly defective lens (no influence on emitted light).

Heavily defective lens (emitted light affected).

X

X

 

(c)

Lamp not securely attached.

Very serious risk of falling off or dazzling oncoming traffic.

X

X

 

4.5.2.

Alignment (X)2

By operation and using a headlamp aiming device

Front fog lamp out of horizontal alignment when the light pattern has cut-off line (cut-off line too low).

Cut-off line above that for dipped beam headlamps.

X

X

 

4.5.3.

Switching

Visual inspection and by operation.

Switch does not operate in accordance with the requirements1.

Not operative.

X

X

 

4.5.4.

Compliance with requirements1.

Visual inspection and by operation.

(a)

Lamp, emitted colour, position, brightness or marking not in accordance with the requirements1

 

X

 

(b)

System does not operate in accordance with the requirements1

 

X

 

4.6.   

Reversing lamps

4.6.1.

Condition and operation

Visual inspection and by operation.

(a)

Defective light source.

X

 

 

(b)

Defective lens.

X

 

 

(c)

Lamp not securely attached.

Very serious risk of falling off.

X

X

 

4.6.2.

Compliance with requirements1

Visual inspection and by operation.

(a)

Lamp, emitted colour, position, brightness or marking not in accordance with the requirements1

 

X

 

(b)

System does not operate in accordance with the requirements1.

 

X

 

4.6.3.

Switching

Visual inspection and by operation.

Switch does not operate in accordance with the requirements1.

Reversing lamp can be switched on with gear not in reverse position.

X

X

 

4.7.   

Rear registration plate lamp

4.7.1.

Condition and operation

Visual inspection and by operation.

(a)

Lamp throwing direct or white light to the rear.

X

 

 

(b)

Defective light source. (Multiple light source).

Defective light source. (Single light source).

X

X

 

(c)

Lamp not securely attached.

Very serious risk of falling off.

X

X

 

4.7.2.

Compliance with requirements1

Visual inspection and by operation.

System does not operate in accordance with the requirements1.

X

 

 

4.8.   

Retro-reflectors, conspicuity (retro reflecting) markings and rear marking plates

4.8.1.

Condition

Visual inspection.

(a)

Reflecting equipment defective or damaged.

Reflecting affected.

X

X

 

(b)

Reflector not securely attached.

Likely to fall off.

X

X

 

4.8.2.

Compliance with requirements1

Visual inspection.

Device, reflected colour or position not in accordance with the requirements1

Missing or reflecting red colour to the front or white colour to the rear.

X

X

 

4.9.   

Tell-tales mandatory for lighting equipment

4.9.1.

Condition and operation

Visual inspection and by operation.

Not operating.

Not operating for main beam headlamp or rear fog lamp.

X

X

 

4.9.2.

Compliance with requirements1

Visual inspection and by operation.

Not in accordance with the requirements1.

X

 

 

4.10.

Electrical connections between towing vehicle and trailer or semi-trailer

Visual inspection: if possible examine the electrical continuity of the connection.

(a)

Fixed components not securely attached.

Loose socket.

X

X

 

(b)

Damaged or deteriorated insulation.

Likely to cause a short-circuit fault.

X

X

 

(c)

Trailer or towing vehicle electrical connections not functioning correctly.

Trailer brake lights not working at all.

 

X

X

4.11.

Electrical wiring

Visual inspection with vehicle over a pit or on a hoist, including inside the engine compartment (if applicable).

(a)

Wiring insecure or not adequately secured.

Fixings loose, touching sharp edges, connectors likely to be disconnected.

Wiring likely to touch hot parts, rotating parts or the ground, connectors disconnected (relevant parts for braking, steering).

X

X

X

(b)

Wiring slightly deteriorated.

Wiring heavily deteriorated.

Wiring extremely deteriorated (relevant parts for braking, steering).

X

X

X

(c)

Damaged or deteriorated insulation.

Likely to cause a short-circuit fault.

Imminent risk of fire, formation of sparks.

X

X

X

4.12.

Non obligatory lamps and retro-reflectors (X)2

Visual inspection and by operation.

(a)

A lamp/retro-reflector fitted not in accordance with the requirements1.

Emitting/reflecting red light to the front or white light to the rear.

X

X

 

(b)

Lamp operation not in accordance with the requirements1.

Number of headlights simultaneously operating exceeding permitted light brightness; Emitting red light to the front or white light to the rear.

X

X

 

(c)

Lamp/retro-reflector not securely attached.

Very serious risk of falling off.

X

X

 

4.13.

Battery(ies)

Visual inspection.

(a)

Insecure.

Not properly attached; likely to cause a short-circuit fault.

X

X

 

(b)

Leaking.

Loss of hazardous substances.

X

X

 

(c)

Defective switch (if required).

 

X

 

(d)

Defective fuses (if required).

 

X

 

(e)

Inappropriate ventilation (if required).

 

X

 

5.   

AXLES, WHEELS, TYRES AND SUSPENSION

5.1.   

Axles

5.1.1.

Axles

Visual inspection with vehicle over a pit or on a hoist. Wheel play detectors may be used and are recommended for vehicles having a maximum mass exceeding 3,5 tonnes

(a)

Axle fractured or deformed.

 

 

X

(b)

Insecure fixing to vehicle.

Stability impaired, functionality affected: Extensive movement relative to its fixtures.

 

X

X

(c)

Unsafe modification3.

Stability impaired, functionality affected, insufficient clearance to other vehicle parts or to the ground.

 

X

X

5.1.2.

Stub axles

Visual inspection with vehicle over a pit or on a hoist. Wheel play detectors may be used and are recommended for vehicles having a maximum mass exceeding 3,5 tonnes. Apply a vertical or lateral force to each wheel and note the amount of movement between the axle beam and stub axle.

(a)

Stub axle fractured.

 

 

X

(b)

Excessive wear in the swivel pin and/or bushes.

Likelihood of loosening; directional stability impaired.

 

X

X

(c)

Excessive movement between stub axle and axle beam.

Likelihood of loosening; directional stability impaired.

 

X

X

(d)

Stub axle pin loose in axle.

Likelihood of loosening; directional stability impaired.

 

X

X

5.1.3.

Wheel bearings

Visual inspection with the vehicle over a pit or on a hoist. Wheel play detectors may be used and are recommended for vehicles having a maximum mass exceeding 3,5 tonnes. Rock the wheel or apply a lateral force to each wheel and note the amount of upward movement of the wheel relative to the stub axle.

(a)

Excessive play in a wheel bearing.

Directional stability impaired; danger of demolishment.

 

X

X

(b)

Wheel bearing too tight, jammed.

Danger of overheating; danger of demolishment.

 

X

X

5.2.   

Wheels and tyres

5.2.1.

Road wheel hub

Visual inspection.

(a)

Any wheel nuts or studs missing or loose.

Missing fixing or loose to an extent which very seriously affects road safety.

 

X

X

(b)

Hub worn or damaged.

Hub worn or damaged in such a way that secure fixing of wheels is affected.

 

X

X

5.2.2.

Wheels

Visual inspection of both sides of each wheel with vehicle over a pit or on a hoist.

(a)

Any fracture or welding defect.

 

 

X

(b)

Tyre retaining rings not properly fitted.

Likely to come off.

 

X

X

(c)

Wheel badly distorted or worn.

Secure fixing to hub affected; secure fixing of tyre affected.

 

X

X

(d)

Wheel size, technical design, compatibility or type not in accordance with the requirements1 and affecting road safety.

 

X

 

5.2.3.

Tyres

Visual inspection of the entire tyre by either rotating the road wheel with it off the ground and the vehicle over a pit or on a hoist, or by rolling the vehicle backwards and forwards over a pit.

(a)

Tyre size, load capacity, approval mark or speed category not in accordance with the requirements1 and affecting road safety.

Insufficient load capacity or speed category for actual use, tyre touches other fixed vehicle parts impairing safe driving.

 

X

X

(b)

Tyres on same axle or on twin wheels of different sizes.

 

X

 

(c)

Tyres on same axle of different construction (radial/cross-ply).

 

X

 

(d)

Any serious damage or cut to tyre.

Cord visible or damaged.

 

X

X

(e)

Tyre tread wear indicator becomes exposed.

Tyre tread depth not in accordance with the requirements1.

 

X

X

(f)

Tyre rubbing against other components (flexible anti spray devices).

Tyre rubbing against other components (safe driving not impaired)

X

X

 

(g)

Re-grooved tyres not in accordance with requirements1.

Cord protection layer affected.

 

X

X

(h)

Tyre pressure monitoring system malfunctioning or tyre obviously underinflated.

Obviously inoperative.

X

X

 

5.3.   

Suspension system

5.3.1.

Springs and stabiliser

Visual inspection with vehicle over a pit or on a hoist. Wheel play detectors may be used and are recommended for vehicles having a maximum mass exceeding 3,5 tonnes

(a)

Insecure attachment of springs to chassis or axle.

Relative movement visible. fixings very seriously loose.

 

X

X

(b)

A damaged or fractured spring component.

Main spring (-leaf), or additional leafs very seriously affected.

 

X

X

(c)

Spring missing

Main spring (-leaf), or additional leafs very seriously affected.

 

X

X

(d)

Unsafe modification3

Insufficient clearance to other vehicle parts; spring system inoperative.

 

X

X

5.3.2.

Shock absorbers

Visual inspection with vehicle over a pit or on a hoist or using special equipment, if available.

(a)

Insecure attachment of shock absorbers to chassis or axle.

Shock absorber loose.

X

X

 

(b)

Damaged shock absorber showing signs of severe leakage or malfunction.

 

X

 

5.3.2.1.

efficiency testing of damping (X)2

Use special equipment and compare left/right differences

(a)

Significant difference between left and right.

 

X

 

(b)

Given minimum values not reached.

 

X

 

5.3.3.

Torque tubes, radius arms, wishbones and suspension arms

Visual inspection with vehicle over a pit or on a hoist. Wheel play detectors may be used and are recommended for vehicles having a maximum mass exceeding 3,5 tonnes

(a)

Insecure attachment of component to chassis or axle.

Likelihood of loosening; directional stability impaired.

 

X

X

(b)

A damaged or excessively corroded component.

Stability of component affected or component fractured.

 

X

X

(c)

Unsafe modification3.

Insufficient clearance to other vehicle parts; system inoperative.

 

X

X

5.3.4.

Suspension joints

Visual inspection with vehicle over a pit or on a hoist. Wheel play detectors may be used and are recommended for vehicles having a maximum mass exceeding 3,5 tonnes

(a)

Excessive wear in swivel pin and/or bushes or at suspension joints.

Likelihood of loosening; directional stability impaired.

 

X

X

(b)

Dust cover severely deteriorated.

Dust cover missing or fractured.

X

X

 

5.3.5.

Air suspension

Visual inspection

(a)

System inoperable.

 

 

X

(b)

Any component damaged, modified or deteriorated in a way that would adversely affect the functioning of the system.

Functioning of system seriously affected.

 

X

X

(c)

Audible system leakage.

 

X

 

6.   

CHASSIS AND CHASSIS ATTACHMENTS

6.1.   

Chassis or frame and attachments